BIKASH SHARMA vs THE STATE OF WEST BENGAL AND ORS.

Form No.J(2)

IN THE HIGH COURT AT CALCUTTA
CIRCUIT BENCH AT JALPAIGURI
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :

The Hon’ble Justice Raja Basu Chowdhury

WPA 483 of 2026

Bikash Sharma
Versus
The State of West Bengal & Ors.
For the petitioner : Mr. Bikramaditya Ghosh
Mr. Ved Rai
Mr. Vivek Saha
Mr.Binayak Bandopadhyay
Mr. Hrisav Anirban Ghosh

For the State : Mr. Jagriti Mishra, Ld. AAAG
Ms. Radhika Agarwal

For the respondent nos. : Mr. Dilip Kumar Agarwal
2 and 3 Mr. Biswaraj Agarwal

Heard on : 02.09.2026

Judgment on : 02.09.2026

Raja Basu Chowdhury, J (Oral):
1. Mr. Agarwal, learned advocate appearing on behalf of the CGST
authorities at the very outset raises objection as regards the petitioner
arraying the State as the respondent no.1, inasmuch as, the order
impugned has been passed by the CGST authorities.

2. Having heard the learned advocates for the parties, I find that
that the CGST authorities have been arrayed as respondent nos. 2 and

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WPA 483 of 2026
3. In the light of the above, I do not find any merit in the objection
raised by Mr. Agarwal.
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3. Challenging the order dated 24 February, 2025 passed under
Section 73 of the CGST/WBGST Act, 2017 (hereinafter referred to as
the “said Act’) for the tax period April, 2020 to March, 2021 an appeal
under Section 107 of the said Act was filed before the appellate
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authority. The said appeal came to be rejected by an order dated 30
January, 2026 as would corroborate from Form GSTAPL-04 as being
barred by limitation.
4. Mr. Ghosh, learned advocate, has, however, drawn attention of
this Court to the show cause notice issued under Section 73 of the said
Act and the order passed under Section 73(9) thereof. By referring to
the aforesaid order, he would submit that though the proper officer was
obliged to confine the adjudication to the show cause notice, the
determination made by the proper officer exceeds the amount indicated
in the show cause which infringes Section 75(7) of the said Act.
According to him, the order impugned cannot be sustained.
Notwithstanding the aforesaid, the appellate authority has purported to
reject the appeal without looking into the material irregularity in the
order, only on the ground of limitation.
5. Mr. Agarwal learned advocate appears on behalf of the
respondent nos. 2 and 3. He submits that the petitioner has only
challenged the order passed by the appellate authority and as such the
petitioner cannot be permitted to question the order in original.

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WPA 483 of 2026
According to him, since the Appellate Tribunal under Section 112 of the
said Act has already been constituted and is functional, this Court
should not entertain the writ petition and should permit the petitioner
to prefer an appeal before the Appellate Tribunal.
6. Having heard the learned advocates appearing for the respective
parties, I find in this matter, an order in original has already been
passed. It is also not in dispute that in order to prefer an appeal, as is
required for maintaining the appeal, the petitioner has pre-deposited 10
per cent of the amount of tax in dispute. The appellate authority,
however, chose not to go into the merits of the appeal and rejected the
appeal on the ground of delay.

7. Though Mr. Agarwal would contend that since the petitioner has
challenged the rejection of the appeal and since the Tribunal is at
present available, this Court ought not to entertain the writ petition, I,
however, find that in the instant case, there is a jurisdictional error
committed by the proper officer in determining the amount of tax,
having regard to the provisions contained in Section 75(7) of the said
Act. To morefully appreciate the aforesaid, the relevant Section is
extracted hereinbelow:-
Section 75(7)
“ The amount of tax, interest and penalty demanded in the
order shall not be in excess of the amount specified in the
notice and no demand shall be confirmed on the grounds
other than the grounds specified in the notice”.

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WPA 483 of 2026
8. In the instant case, though the show cause was confined to a
demand-cum-show cause for sum of Rs.9,38,898/- the determination
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in Form GSTDRC 07 dated 24 February, 2025 has been computed to
Rs.10,27,788/-.
9. Since, there appears to be a glaring jurisdictional error
committed by the proper officer in determining the demand beyond the
demand-cum-show cause, in my view no fruitful purpose will be served
to grant liberty to the petitioner to approach the Appellate Tribunal.
Accordingly, the writ petition stands allowed. Both orders passed by the
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proper officer dated 24 February, 2025 as also by the appellate
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authority dated 30 January, 2026, are set aside.
10. The matter is remanded back to the proper officer. The proper officer
shall hear out and dispose of the show cause in accordance with law upon
affording an opportunity of hearing to the petitioner as expeditiously as
possible preferably within a period of six weeks from the date of
communication of this order. For the said purpose the proper officer shall
issue a notice to the petitioner on common portal before proceeding further.

11. With the above observations and directions, the writ petition is
disposed of.
Urgent Photostat certified copy of this order, if applied for, be given to
the parties upon compliance with the requisite formalities.

(Raja Basu Chowdhury, J . )
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A.R. (Court)