DEBANGSU BASAK,J. - (1.) The petitioner seeks refund of a sum of Rs. 4,21,815/- along with interest allegedly recovered by the authorities under coercion.
(2.) Learned advocate appearing for the petitioner submits that, the petitioner was assessed for tax at the rate of four per cent for every financial year other than a few financial years, in respect of which, the order of assessment was never served upon the petitioner. Although, the petitioner had preferred an appeal from the order of assessment after coming to know of the same. Such appeal was not entertained on the ground that, the certified copy of the order of assessment was not produced. The revision carried therefrom was dismissed on the ground that, the order in appeal did not pronounce finally on the subject of assessment. He submits that, the authorities had extracted a sum of Rs. 4,21,815/- in a recovery proceedings, without following the due process of law, established under the provisions of the Schedule F of the West Bengal Value Added Tax Act, 2003. In particular, the authorities did not follow the rules regulating the procedure for recovery of tax, late fee, penalty and interest and Rule 2 thereof. He relies upon 2011 Volume-II Supreme Court Cases Page-439 (Godavari Sugar Mills Limited v. State of Maharashtra and Ors.) and submits that, a writ petition is maintainable to obtain refund of money extracted without the due process of law. He refers to the supplementary affidavit and submits that, the petitioner had prayed for quashing of the order of assessment, and the order passed in appeal, as well as in the revision.
(3.) Learned Additional Advocate General appearing for the respondents submits that, the question of the petitioner making the payment in the recovery proceedings under coercion does not arise. He refers the order of assessment dated May 11, 2005 and submits that, the petitioner has taken the stand before the appellate authority that, the petitioner could not prefer the appeal within time as there was a problem with the mother of the petitioner. The non-receipt of the certified copy of the order of assessment was never raised as an issue therein. He submits that, the warrant of attachment was issued on January 27, 2011 and that, the payment was made by the petitioner on January 28, 2011. The petitioner had approached the revisional authority and had obtained an order of stay on March 29, 2012 on the contention that, the taxes demanded have since been paid. The petitioner had filed a revision before the Tribunal on July 2, 2012 directed against the order assessment under the Central Sales Tax Act. The writ petition has since been filed on May 15, 2013.;