Petitioner Failed To Avail Appeal Remedy, Can’t Invoke Of The Extraordinary Jurisdiction: Patna High Court

The Court stated that the petitioner by his own failure had not availed the appellate remedy and in that circumstance, there can be no invocation of the extraordinary jurisdiction under Article 226 of the Constitution of India

The Court clarified that when a specific period for delay condonation is provided, there can be no extension by the Appellate Authority or the Court under Article 226 of the Constitution.

The matter was being heard by a division bench of Chief Justice K. Vinod Chandran and Justice Partha Sarthy.

The above ruling came in a writ petition led against an assessment order and the rejection of an appeal filed, on the ground of limitation, whereby it was urged that the assessment order itself was an ex parte order.

A detailed counter affidavit was filed by the State, wherein it was pointed out that there was a notice issued and repeated opportunities given to the assessee for putting forth their explanation of the excess input tax claimed; which however was not availed of by the assessee.

The assessee had claimed input tax credit respectively of Rs. 3,78,624.23/- each under CGST and SGST Act. However, the GSTR-2A made available by the supplier of the petitioner-assessee showed only a credit of Rs. 93,825.77/-.

At first an electronic notice was uploaded in the portal, which was dated 17.08.2021 to which no response was received. Reminders were made repeatedly on 06.09.2021 and 16.09.2021, which were also not responded to, nad finally a show-cause notice along with a summary in Form- GST DRC-01 dated 08.11.2021 was issued to the petitioner, fixing 07.12.2021 as the last date of hearing.

However, the petitioner failed to appear and the order was passed on 10.12.2021 under Section 73(9) of the BGST Act.

The summary of the order was also served on the petitioner electronically on 10.12.2021 by uploading in the common portal. The petitioner filed an appeal with gross delay of one month nine days.

In the present case, the assessment order was dated 10.12.2021 and the appeal was filed only on 10.07.2022.

The Court noted that the Supreme Court in Suo Motu Writ Petition (C) No. 3 of 2020 , In Re: Cognizance For Extension of Limitation due to the pandemic situation, limitation was saved between 15.03.2020 till 28.02.2022. The Court further noted that it was also directed that an appeal could be filed within ninety days from 01.03.2022. Hence, an appeal could have been filed on or before 29.05.2022, which provision was not availed by the petitioner herein.

The Court also noted that the Supreme Court also declared that if a longer period than 90 days is provided in a Statute, then that longer period will apply. In the BGST Act, u/s 107(4) there is a provision for condonation of delay, if the appeal is filed delayed, within one month of expiry of limitation.

The Court noted, “Even if that be deemed to be appealable then the appeal ought to have been filed by 28.06.2022. The appeal is said to have been filed only on 10.07.2022 , after 12 days from the date on which even the limitation period, as stipulated by the Hon’ble Supreme Court, expired.”

Placing reliance on State of H.P & Ors. v. Gujarat Ambuja Cement Limited & Anr.; (2005) 6 SCC 499, the Court said that High Court, can always refuse the exercise of discretion if there is an adequate and effective remedy elsewhere, and 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,” the Court emphasised.

The Court ruled that 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.

The Court clarified 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 asserted that it is 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 said, “The petitioner by his own failure has not availed the appellate remedy and in that circumstance, there can be no invocation of the extraordinary jurisdiction under Article 226 of the Constitution of India.”

“We also find that there is no jurisdictional error, violation of principles of natural justice or abuse of process of Court averred or argued by the petitioner in the above writ petition. The gross delay also stands against the petitioner,” the Court added while dismissing the writ petition.

Counsel/s For the Petitioner/s: Mr. Achhaibar Singh, Advocate

Counsel/s For the Respondent/s: Mr. Raghwanand, GA-11 Mr. Sanjay Kumar Tiwari, AC to GA-11

LL Citation: 2023 LiveLaw (Pat) 135

Case Title: M/s Punit Kumar Choubey vs. The Commissioner, Commercial Tax, and Others

Case No.: Civil Writ Jurisdiction Case No.9975 of 2023

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