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2024 (4) TMI 102
Principles of natural justice - decision was not taken by same members of AAR who have heard the case - Taxability - club and association services - services such as short-term accommodation, restaurant and recreational services provided by them to its members - principle of mutuality - HELD THAT:- The contention of the appellant is noted that though the said amendment was retrospective, however, it was not passed by all state assemblies as well as it was not operational till the date when the Ruling was pronounced. This amendment was brought into force vide Notification No. 39/2021-Central Tax dated 21.12.2021 w.e.f. 1.1.2022. The Advance Ruling has been pronounced on 27.09.2021 on the basis of an amendment which was not operational as on the date of pronouncing Ruling. The appellant avers that such a Ruling is not sustainable and deserves to be quashed. The AAR need to take note of the contentions & pass a speaking order with reference to them.
It is also noted that the decision was not taken by same members of AAR who have heard the case - This is a violation of the principles of natural justice.
The Ruling of the AAR, Rajasthan is set aside matter is remanded back to AAR to decide the application de-novo after all the contentions of the appellant.
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2024 (4) TMI 101
Scope of Advance Ruling application - Net impact of GST on the cost of a pre-GST lump sum contract - Computation of value of supply to levy GST of a lump sum work contract entered under pre-GST tax regime - HELD THAT:- The subject application for Advance Ruling made by the applicant is not maintainable and hereby rejected under the provisions of the GST Act, 2017.
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2024 (4) TMI 100
Exemption from GST - Pure services or not - supply of service for turpentine treatment - supply of manpower - man with machine - security services - anti-termite services - service provided to Central Government, State Government, Local Authorities, Governmental Authorities, Government Entities such as Gram Panchayats, Panchayat Samiti viz. Block Development Officer and Other Government Agencies viz. Central Warehousing Corporation - HELD THAT:- It is found appropriate to discuss the definition of "Pure Service". Nowhere "Pure Service" has been defined under GST Act and Rules, framed thereunder. However as per general terms, "Pure Service" is a service that does not involve the supply of any goods or the use of goods as a material for rendering the service. Examples of "Pure Service" include consultancy, training, software development, accounting, legal services, etc. Pure services are intangible and cannot be touched, tasted, or seen.
Security service - HELD THAT:- It is found that Security Service, provided by the applicant, is not entrusted to a Panchayat under Article 243G of the Constitution or to a Municipality under Article 243W of the Constitution. Therefore, the applicant is not entitled to avail exemption in term of Serial No. 3 of Notification No. 12/2017-CT(Rate) dated 28.06.2017.
Manpower with machine supply - Anti-termite Treatment - Pest Control Service - HELD THAT:- The applicant has not supplied any copy of work order with regard to provision of Manpower with machine; Anti-termite Treatment and Pest Control Service, consequently it is not possible to determine the nature of service. However on perusal of the contents, mentioned in their submission, it is evident that these services have been supplied with goods. Therefore the same is termed as Composite Supply and not Pure Service.
The applicant is not entitled to avail benefit under Sr. No 3 of Notification No. 12/2017-CT (Rate) dated 28.06.2017 in respect of supply of Manpower with machine and Anti-termite Treatment, Pest Control Service.
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2024 (4) TMI 99
Supply or not - future contracts - works contract services - pure services or not - supply related to the business of pumping stations and reservoirs to be undertaken by the applicant is covered under the notification No. 12/2017-Central Tax (Rate) dated 28.06.2017, amended by Notification No. 2/2018 dated 25.01.2018 and further Notification No. 16/2021 dated 18.11.2021 or not - HELD THAT:- The contract covers civil works wherein the supply of goods is also involved and thus such service falls under Works Contract service and hence it can't be a pure service. Further the applicant vide their letter dated 08.06.2022, addressed to the contractee M/s BWSSB clearly mentioned that "the O&M services consist of both supplies of labour / manpower and material and hence, the same shall be covered under works contract and cannot be considered in the nature of pure services".
Thus, from the available information, the future contracts that the applicant intends to undertake are in the nature of works contract services for construction of pumping stations and reservoirs. The said services are not covered under any of the entries of the Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017, as amended.
It is concluded that the question posed by the applicant is related to supplies undertaken by them, to M/s BWSSB, Bengaluru, prior to the date of filing of the application for advance ruling and thus no ruling can be given on the question. Thus the instant application is not maintainable and liable for rejection under the provisions of the GST Act 2017. Further, as for the question on future supplies is concerned, based on the available information the supply is of works contract services and is not covered under any of the entry in the Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017, as amended.
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2024 (4) TMI 59
Violation of the principles of natural justice - No opportunity of personal hearing granted to the Petitioner - contrary to the provisions of Section 75(4) of the Central Goods and Service Tax Act, 2017 (“CGST Act”) - HELD THAT:- In the present case, by its reply dated 4th July 2023, Petitioner No. 1 specifically sought an opportunity of personal hearing. In these circumstances, Respondent No. 3 was bound to give a personal hearing to the Petitioner before passing the said Order dated 18th August 2023. Further, by the said Order dated 18th August 2023, a decision adverse to Petitioner No. 1 has been taken. Therefore, in these circumstances also, Respondent No. 3 was bound to given a personal hearing to Petitioner No. 1. However, no such personal hearing has been given by Respondent No. 3 to Petitioner No. 1 before passing the said Order dated 18th August 2023.
Since the said Order dated 18th August 2023 has been passed without giving any personal hearing to the Petitioner, the same is in violation of the principles of natural justice and exfacie contrary to the provisions of Section 75(4) of the CGST / MGST Act.
Thus, we dispose of this Writ Petition by the following Orders: - The impugned Order dated 18th August 2023 passed by Respondent No. 3 is hereby quashed and set aside.
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2024 (4) TMI 58
Violation of principles of natural justice - no opportunity of personal hearing granted to the Petitioner - discrepancies noted in the returns - Seeks to quash the Order - contrary to the provisions of Section 75(4) of the Central Goods and Service Tax Act, 2017 (“CGST Act”) - HELD THAT:- In the present case, by its reply dated 10th July 2023, Petitioner No. 1 specifically sought an opportunity of personal hearing. In these circumstances, Respondent No. 3 was bound to give a personal hearing to the Petitioner before passing the said Order dated 22nd August 2023. However, no such personal hearing has been given by Respondent No. 3 to Petitioner No. 1 before passing the said Order dated 22nd August 2023.
Since the said Order dated 22nd August 2023 has been passed without giving any personal hearing to the Petitioner, the same is in violation of the principles of natural justice and ex-facie contrary to the provisions of Section 75(4) of the CGST / MGST Act.
Thus, we dispose of this Writ Petition by the following Orders: - The impugned Order dated 22nd August 2023 passed by Respondent No. 3 is hereby quashed and set aside.
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2024 (4) TMI 57
Recovery notices and bank attachment orders - Validity of assessment order - No opportunity of being heard - discrepancies between the GSTR 3B return and the GSTR 2B return - HELD THAT:- On perusal of the impugned assessment order, it is evident that the tax liability and interest and penalty was levied in respect thereof. By taking into account the fact that about 50% of the tax liability was recovered by making an appropriation from the petitioner's bank account, it is just and necessary to provide the petitioner an opportunity of being heard. Solely for that reason, the impugned order calls for interference.
Impugned order is set aside and the matter is remanded for reconsideration. The petitioner is permitted to submit a reply to the show cause notice within a period of 15 days from the date of receipt of a copy of this order by annexing all relevant documents. Upon receipt thereof, the respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order within a period of two months from the date of receipt of the petitioner's reply. In view of the assessment order being quashed, the bank attachment stands raised.
The writ petition is disposed of on the above terms.
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2024 (4) TMI 56
Validity of Assessment order - demand of GST - petitioner asserts that an error was committed by entering the same invoice number in multiple e-way bills - No reasons for rejecting petitioner's reply - HELD THAT:- From the petitioner's reply dated 28.08.2023, it appears that the petitioner conceded that an inadvertent error was made by including the same invoice number under multiple e-way bills. The petitioner also attached the relevant bill copies with such reply.
The findings recorded in the impugned order discloses that the reply of the petitioner was noticed, but the reasons for rejecting such reply and, in particular, the documents annexed thereto, do not find place in the impugned order. For such reason, the impugned order calls for interference.
Therefore, the impugned order dated 30.09.2023 is quashed and the matter is remanded to the assessing officer for re-consideration. Upon receipt thereof, the assessing officer is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh assessment order within two months from the date of receipt of the petitioner's reply.
W.P is disposed of on the above terms - Consequently, W.M.P is closed.
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2024 (4) TMI 25
Validity of Demand of GST - No personal hearing as required under Section 75(5) - Bank account has been frozen - discrepancies between GSTR-3B and GSTR-7 and mismatch between GSTR-3B and GSTR-7 - ASMT-10 order passed - intimation issued u/s 73 - HELD THAT:- Opportunity of hearing is a basic requirement before passing any adverse order. In the present case, admittedly, the petitioner has not availed that opportunity of personal hearing provided through portal. Since the petitioner has made out a prima facie case, this Court is inclined to entertain this Writ Petition and grant an order of interim stay. The learned Additional Government Pleader submits that instead of granting an interim order, the petitioner can be provided one more opportunity and the date can be fixed by this Court.
For the sole purpose to provide an opportunity of personal hearing to the petitioner, this Court is inclined to set aside the impugned order. Accordingly, the same is set aside. The petitioner, without expecting any further notice from the 1st respondent, shall appear before the 1st respondent on 27.03.2024 and shall provide his explanation, if any. The 1st respondent shall consider the same and pass a fresh order.
In fine, this Writ Petition is allowed.
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2024 (4) TMI 24
Violation of principles of natural justice - show cause notice issued through online portal - Petitioner not acquainted with the advance technology of following the notices - on-line portal and uploading the notices through on-line portal - No opportunity of hearing - HELD THAT:- The impugned order has been passed after issuing notice in Form ASMT-10 dated 13.05.2022 and notice in Form DRC 01A dated 05.11.2022 and notice in Form DRC 01 dated 03.12.2022. Admittedly, all these notices were uploaded only through the portal. Though Section 169(d) of TNGST Act 2017, enables the respondent to issue notice through the common portal, other modes are also made available to the respondent under Section 169 of the TNGST Act 2017. In this case, the petitioner is a Timber Trader. He is not an educated person and he is not acquainted in following the notices uploaded through the common portal.
Thus, this writ petition is allowed by setting aside the impugned order passed by the respondent dated 23.02.2023 and the matter is remitted back to the respondent for fresh consideration. The respondent shall proceed with the assessment and pass orders afresh, after providing an opportunity of hearing to the petitioner. The petitioner shall appear before the respondent on 04.03.2024 (Monday) along with the required documents. In order to avoid such a situation, the respondent shall also find out the possibility of issuing the notices through other modes, which are also made available u/s 169 of the TNGST Act 2017.
Consequently, connected miscellaneous petition is closed.
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2024 (4) TMI 23
Refund of pre-deposit alongwith interest - CIRP - Approval of Resolution Plan under IBC - wrongful availment of CENVAT credit - HELD THAT:- There are no hesitation in holding that the Revenue in the impugned order has completely misdirected itself in law and has completely misconstrued the orders passed by the Ld. NCLT. The purport of the order dated 22.04.2022 passed by the Ld. NCLT which has been relied by the Revenue to reject the claim of the Petitioner that “no persons will claim any dues including the statutory dues owed to Central, State Government or any local authority” is rather applicable qua the claims of the Revenue against the Petitioner, and does not in any manner imply that the pre-deposit made by the Petitioner is not to be refunded; more so, when the very tax liability has stood extinguished.
Further, if at all the Revenue retains the pre-deposits made by the Petitioner; the same would amount to unjust enrichment since the very tax liability which was subject matter of appeals, stood extinguished.
So far as stand of the Revenue that Refund application of Petitioner was examined as per Circular No. 984/08/2014-CX dated 16.09.2014; in this regard, it is observed that the said circular is inapplicable to the facts of the instant case and it is of a period prior to the enactment of the Insolvency & Bankruptcy Code, 2016. Moreover, there is no reference to the said circular in the impugned order.
In the case of Rainbow Papers [2022 (9) TMI 317 - SUPREME COURT], the Revenue not only filed its claims before the resolution professional and also had challenged the resolution plan before the NCLT. However, in the instant case, there was neither any claim filed by the Revenue before the resolution professional nor there was any challenge by the Revenue to the resolution plan or any other orders passed by the NCLT. In the case of Sanjay Kumar Agarwal [2023 (11) TMI 54 - SUPREME COURT], a review was filed against the judgment in Rainbow Papers and the same was dismissed.
The order is hereby, quashed and set aside. The Respondent-Revenue is directed to refund the aforesaid pre-deposit amount of Rs. 2,06,31,698/- to the Petitioner along with applicable statutory interest - the instant writ application is allowed.
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2024 (4) TMI 22
Classification of treated water - what is the appropriate classification of the treated water that would be sold by the Applicant, after carrying out various treatment process on the effluent water purchased by them - rate of GST applicable on the said treated water - HELD THAT:- Upon going through the processes effected by the Applicant, the effluent water is subjected to micro-filtration and sand filtration process to remove suspended impurities. They have then used a series of RO units for removing minerals. In spite of the RO treatment, the TDS of the treated water is higher, which can be seen from the test report. As per the report furnished by the South India Textile Research Association (SITRA) Textile Testing and Service Centre, test report No. V2300304, dated 9-8-2023 of Sample given for testing, in the case of the Applicant, it is seen that the recovered water contains chlorides, sulphates, Bicarbonates, etc. The TDS levels of the treated water as per the test report is 272 mg/1, which clearly shows the treated water is not demineralized as per the standard norms. From the above, it is clear that treated water cannot be construed as de-mineralized water.
As discussed, treated water will not fit into Sl. No. 24 of Notification No. 1/2017-C.T. (Rate), dated 28-6-2017. Also treated water is not demineralized water as claimed by them but water, without any special characters as indicated in the tariff entries.
Therefore, it is amply clear that, water recovered out of the effluent treatment process nothing but an ordinary water which is suitable for reuse by the dyeing and bleaching units as a solvent and as a washing, rinsing medium. Thus, it aptly fits into Sl. No. 99 of Notification No. 2/2017-C.T. (Rate), dated 28-6-2017 under the Heading 2201 rather than Sl. No. 24 of Notification No. 1/2017-Central Tax (Rate), dated 28-6-2017 under the same Heading 2201.
It is observed that the process carried out by the Applicant involves conversion of effluent water into treated water to make it suitable for reuse by the member units. At the same time, the treated water cannot be put into any other usage, as the same is not completely free of impurities, bacteria and other harmful micro-organisms and chemicals.
The above facts reiterate that the ultimate intention behind the effluent treatment process is to treat the effluent water discharged by textile units to recover water, salt and other chemicals consumed during the course of dyeing and bleaching to the maximum extent possible so as to reuse the same without getting it discharged to pollute water bodies. Moreover, ZLD has been mandated by the TNPCB for all the highly polluting industries including Textile Dyeing and Bleaching industries in order to prevent pollution of River water and ground water. Therefore, it is evident that the common effluent treatment plant has been set up in order to comply with the legislative and environment regulations thereby conserving water through recovery and reuse and not to manufacture water or chemicals.
Therefore, we find that effluent treated water is eligible for exemption as per Notification No. 2/2017-Central Tax (Rate) as amended vide Notification No. 7/2022-Central Tax (Rate), dated the 13th July, 2022
Therefore, The classification of treated water to be sold by the applicant is correctly classifiable as per Notification No. 2/2017-Central Tax (Rate). The said treated water is eligible for exemption as per the notification.
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2024 (3) TMI 1316
Liability of Collect Tax at Source (TCS) - Exempt supplies - Section 52 of the Central Goods and Services Tax Act, 2017 (CGST Act) - It is contended that payment for the contract can either be settled through the Petitioner’s platform, or it can be settled directly between the buyer and seller. The Petitioner does not guarantee settlement of transactions by way of delivery of goods or payment. The Petitioner merely charges transaction fees for providing the platform to its members for the purpose of e-auction.
HELD THAT:- In the peculiar facts and circumstance of the case, when the Petitioner has raised an issue of the maintainability of the alleged demand on the ground that Section 52 of the CGST Act is not applicable, and more particularly considering the nature of the business and transaction involved, it would be appropriate that the adjudicating officer considers the same as preliminary issues and decide the same first in accordance with law.
This Petition is disposed off by permitting the Petitioner to raise such preliminary issues before the adjudicating officer and the same shall be taken into consideration and decided by him in accordance with law.
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2024 (3) TMI 1315
Seeking grant of regular bail - irregular availment of Input Tax Credit - violation of provisions of Section 132(1) (b) and 132(1)(c) of the CGST Act - HELD THAT:- On perusal of the record, this Court has arrived at the conclusion that the petitioner deserves to be released on bail in the present case. No doubt, the respondents have levelled specific allegations against the present petitioner, yet, the criminal liability of the petitioner is yet to be decided by the trial Court during the course of trial. Still further, the petitioner was arrested in the present case on 19.04.2023 and the maximum sentence provided under the statute is five years. Still further, the case of the prosecution is based on the testimonies of official witnesses and the petitioner may not be in a position to influence the witnesses, who are to be produced by the prosecution before the trial Court. Even otherwise, the petitioner cannot be confined in jail as an under-trial for an indefinite period.
Thus, without commenting any further on the merits, the present petition is allowed and the petitioner is ordered to be released on bail on his furnishing bail bonds/surety bonds to the satisfaction of the learned trial Court/Duty Magistrate/CJM concerned subject to the conditions imposed - petition allowed.
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2024 (3) TMI 1314
Levy of GST - activity of holding equity capital by the parent Company in the Petitioner - ultravires Section 5 of the IGST Act, 2017 read with Section 7 of the CGST Act, 2017 or not - HELD THAT:- In the instant case, the parent company is M/s. Metro Cash and Carry International GmbH of which the petitioner herein i.e., M/s. Metro Cash and Carry Pvt. Ltd., is a subsidiary and merely because the parent company – M/s. Metro Cash and Carry International GmbH holds shares in its subsidiary i.e., the petitioner herein, the said circumstance cannot be classified, treated or construed as ‘supply of service’ for the purpose of GST.
Since the issue in controversy involved in the present petition is directly and squarely covered by the judgment of this Court in M/S. YONEX INDIA PRIVATE LIMITED VERSUS UNION OF INDIA, STATE OF KARNATAKA, COMMISSIONER OF COMMERCIAL TAXES BANGALORE, ASSISTANT COMMISSIONER OF COMMERCIAL TAXES (AUDIT 2. 8) BANGALORE [2024 (2) TMI 59 - KARNATAKA HIGH COURT], the impugned Show Cause Notices issued are without jurisdiction or authority of law and the same deserves to be quashed.
Petition allowed.
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2024 (3) TMI 1313
Cancellation of GST registration of petitioner - non-service of notice to the Petitioner on his address or email and was only uploaded on the common portal - violation of principles of natural justice - HELD THAT:- The petitioner was unable to access the Show Cause Notices or reply to the said Show Cause Notices.
The impugned orders dated 04.12.2023 which have been passed solely because petitioner had not file a reply cannot be sustained. The matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned orders dated 04.12.2023 are set aside. The matter is remitted to the Proper Officer for re-adjudication.
Petition disposed off.
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2024 (3) TMI 1312
Demand of GST - Validity of the order in FORM GST DRC-07 - Violation of natural justice - impugned order was passed before the period of 15 days could expire and the petitioner-Firm has therefore not been given a fair opportunity to put forth its defence to SCN - Appealable order or not - HELD THAT:- In the first place, a challenge to the show-cause notice, charge memo or charge-sheet is generally not entertained in a proceeding under Article 226 of the Constitution of India. There is a sound policy in law behind this rule of non-interference that the aggrieved person should first avail of the remedy provided under the statutory regime. The impugned order dated 28th December 2023 passed by the State of Tax Officer, Special Circle, Ranchi is appealable under section 107 of the GST Act and under section 107 of the JGST Act.
The summary of show-cause notice is dated 13th December 2023. Through this notice, the petitioner-Firm was intimated that within 15 days if it deposits the assessed amount or provides satisfactory reply the notice shall be withdrawn. Now the stand of the petitioner-Firm is that it submitted a detailed show-cause reply dated 29th December 2023 but before that the impugned order dated 28th December 2023 has been passed - The notice is dated 13th December 2023 and the petitioner-Firm itself affirms that the said notice was mailed on 16th December 2023 in FORM DRC-1.
The petitioner-Firm is required to approach the appellate authority who shall have the benefit of the records and would be in a better position to adjudicate the disputes on facts - this Court is not inclined to entertain the present writ petition which is dismissed only on the ground that no case is made out for entertaining this petition notwithstanding the statutory regime under the JGST Act.
Petition dismissed.
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2024 (3) TMI 1311
Taxability of Personal Guarantee and Corporate Guarantee in GST - Seeking a declaration that the activity of the holding company providing a Corporate Guarantee to a subsidiary is not in the nature of supply of services taxable under Section 9 of the Central Goods & Service Tax Act, 2017 - HELD THAT:- Issue notice.
List on 08.07.2024.
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2024 (3) TMI 1310
Maintainability of petition - appealable order or not - non-constitution of the Appellate Tribunal - petitioner is deprived of its statutory remedy of Appeal and the corresponding benefit of sub-sections-8 & 9 of section 112 of the CGST/OGST - HELD THAT:- The petitioner is desirous of availing the statutory remedy of Appeal under the said provisions. Apparently, acknowledging the absence of constitution of Appellate Tribunal, in exercise of the power conferred under section 172 of the CGST Act, 2017, the Government of India based on the recommendation made by the G.S.T. Council, has issued Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 on 03.12.2019.
In tune with the said Removal of Difficulties Order dated 03.12.2019, the Central Board of Indirect Taxes and Customs, GST Policy Wing vide Circular No. 132/2/2020-GST Dated 18th March, 2020 has come out with the clarification in respect of appeal having regard to non-constitution of the Appellate Tribunal - Taking into account the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 dated 03.12.2019 issued by the Government of India and subsequent clarification issued by the Central Board of Indirect Taxes and Customs (GST Policy Wing) vide Circular No. 132/2/2020 dated 18th March, 2020, it is deemed proper in the interest of justice to dispose of this writ petition, subject to conditions imposed.
The writ petition stands disposed of.
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2024 (3) TMI 1309
Additional tax liability for execution of subsisting Government contracts either awarded in the pre-GST regime or in the post-GST regime without updating the Schedule of Rates (SOR) - HELD THAT:- This writ petition is disposed of by giving liberty to the petitioner to file appropriate representation in the aforesaid regard as referred in preceding paragraph of this order, before the Additional Chief Secretary, Finance Department, Government of West Bengal within four weeks from date. On receipt of such representation the Additional Chief Secretary, Finance Department shall take a final decision within four months from the date of receipt of such representation after consulting with all other relevant departments concerned.
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