Vehicle Can't Be Detained For Want Of Second E-Way Bill When The First Was Valid: Calcutta High Court
The Calcutta High Court bench of Justice T.S. Shivagnanam and Justice Hirnmay Bhattacharyya has held that the GST department cannot detain vehicles in the absence of a second e-way bill as the first e-way bill was valid in the interception period. The respondent/assessee submitted that the detention of the vehicle along with the goods and the demand for tax and penalty were...
The Calcutta High Court bench of Justice T.S. Shivagnanam and Justice Hirnmay Bhattacharyya has held that the GST department cannot detain vehicles in the absence of a second e-way bill as the first e-way bill was valid in the interception period.
The respondent/assessee submitted that the detention of the vehicle along with the goods and the demand for tax and penalty were not justified. The e-way bill, which was being carried in the vehicle transporting the goods, expired at midnight on September 8, 2019 and the goods were transported on September 9, 2019. The vehicle was intercepted at 1.30 p.m. (noon).
The assessee contended that the vehicle transporting goods had broken down and, on account of that, there was delay and there was no willful intention to evade payment of tax.
The department filed an appeal before the Single Judge Bench. The single Bench disposed of the writ petition by setting aside the order dated September 11, 2019. It was held that the assessee was entitled to get a refund of penalty and tax paid on protest, subject to compliance with all legal formalities. The department was aggrieved by such an order and appealed before the division bench.
The department contended that neither before the appellate authority nor in the pleadings in the writ petition, the assessee had stated anything about the vehicle being broken down or that the non-extension of the validity of the e-way bill was not deliberate and willful but due to the circumstances as stated. When such was the factual position, the single bench ought not to have allowed the writ petition by accepting the argument, which was placed for the first time when the writ petition was moved before the Court.
The assessee contended that the writ petitioner had raised a tax invoice in favour of Om Dayal Educational and Research Society, which had its registered office at Kolkata but the goods had to be delivered as per the instruction of the purchaser at Delhi Public School, Sector–2D, Bidhannagar, Durgapur. The assessee had raised a second e-way bill as the the distance between the places was 9 kilometres, the e-way bill was valid upto September 8, 2019. The vehicle number in both the e-way bills will clearly show that it is the same vehicle.
The court held that the bona fides of the writ petitioner had to be tested on the documents, which were available on record.
"The first e-way bill dated September 7th, 2019 was valid up to September 9th, 2019. Therefore, in the absence of the second e-way bill, the tax authorities at Durgapur could not have intercepted or detained the vehicle. Therefore, the explanation offered by the respondent/writ petitioner was an acceptable explanation and a case cannot be made out that there was a deliberate and willful attempt on the part of the respondent/writ petitioner to evade payment of tax so as to justify invocation of the power under Section 129 of the Act," the court while granting the relief to the assessee observed.
Case Title: Assistant Commissioner Versus Ashok Kuamr Sureka
Citation: 2022 LiveLaw (Cal) 201
Dated: 12.05.2022
Counsel For Petitioner: Advocates T. M. Siddique, Soumitra Mukherjee, Debasish Ghosh
Counsel For Respondent: Advocates Ankit Kanodia, Himangshu Kumar Ray, Megha Agarwal
Counsel For Respondent: Authorized Representative Hanuma Prasad