Appellate Authority Or Article 226 Of The Constitution Cannot Extend Delay Condonation Period With A Specified Timeframe: Patna High Court

The case in question involved M/s Narayani Industry, a Partnership firm, which was an assessee under the BGST Act. The petitioner was aggrieved with the assessment order that determined tax liabilities under both the Central Goods and Services Tax Act, 2017 (CGST) and the State Goods and Services Tax Act, 2017 (SGST), along with associated interest and penalties.

The petitioner had received three appealable orders on 04.03.2023, 10.03.2023, and 18.03.2023, all of which fell under Section 107 of the BGST Act. However, Sub-section (4) of Section 107 mandated a three-month window for filing appeals, with an additional one-month period for delayed appeals, provided sufficient reasons for the delay were provided.

The last of these orders, dated 18.03.2023, allowed for an appeal to be filed until 17.06.2023, and an extension until 16.07.2023 was available for filing a delayed appeal with justifiable reasons.

The court noted that the petitioner had not pursued the appellate remedy within the specified timeline and instead approached the High Court under Article 226 after the appeal period had lapsed, even without filing a delay condonation application.

The court also noticed that the contours of the jurisdiction under Article 226 of the Constitution of India to interfere with appealable orders laid down by the Supreme Court in State of H.P & Ors. v. Gujarat Ambuja Cement Limited & Anr.; (2005) 6 SCC 499, whereby it was held that if an assessee approaches the High Court without availing the alternate remedy, it should be ensured that the assessee has made out a strong case or that there exists good grounds to invoke the extraordinary jurisdiction. While reiterating that Article 226 of the Constitution confers very wide powers on the High Court, it was clarified that nonetheless the remedy of writ is an absolutely discretionary remedy.

The court asserted, “The High Court, hence, can always refuse the exercise of discretion if there is an adequate and effective remedy elsewhere. The High Court can exercise the power only if it comes to the conclusion that there has been a breach of principles of natural justice or due procedure required for the decision has not been adopted. The High Court would also interfere if it comes to a conclusion that there is infringement of fundamental rights or where there is failure of principles of natural justice or where the orders and proceeding are wholly without jurisdiction or when the vires of an Act is challenged. There is no such plea made by the petitioner in the present case against the impugned order.”

“Having not availed the statutory remedies available, the petitioner cannot seek to approach this Court under Article 226 of the Constitution of India to challenge an assessment order especially with respect to the computation of the turn over and the determination of the taxable turnover and the tax payable, as arrived at by the Assessing Officer. In the BGST Act, an appellate remedy is provided under Section 107, which has to be availed within a period of three months or with a delay within a further period of one month,” the Court added.

The Court said that it is a trite law that when there is a specific period for delay condonation provided, there cannot be any extension of the said period by the Appellate Authority or by this Court under Article 226 of the Constitution.

The Court held, “We find that there is no jurisdictional error, violation of principles of natural justice or abuse of process of law averred or argued by the petitioner in the above writ petition. From the records produced before us, it is clear that an inspection was conducted in the premises of the assesse and the same was also found locked. The assessee claims that his stock was kept in another go-down; which should have been informed to the Tax Authorities.”

“It was in this circumstance that an assessment was made and there is no ground stated in the writ petition which would enable invocation of the extraordinary remedy under Article 226; as has been delineated in Gujarat Ambuja (supra) . The petitioner only makes a bland assertion of violation of fundamental and legal rights guaranteed to the petitioner under Articles 14, 19(1)(g) and 300A of the Constitution of India without any substantiation,” it added, while dismissing the writ petition.

The above verdict was delivered by a division bench of Chief Justice K. Vinod Chandran and Justice Partha Sarthy.

Counsel For the Petitioner/s: Mr.Mohit Agarwal, Advocate

Counsel For the Respondent/s: Mr.Vikash Kumar (SC-11)

LL Citation: 2023 LiveLaw (Pat) 107

Case Title: M/s Narayani Industry vs. The State of Bihar

Case No.: Civil Writ Jurisdiction Case No.11333 of 2023

Click Here To Read Order