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IN THE HIGH COURT OF JUDICATURE AT PATNA
K. VINOD CHANDRAN, PARTHA SARTHY, JJ.
M/s Chunnu Yadav – Petitioner
Versus
The State of Bihar – Respondent
Civil Writ Jurisdiction Case No. 9198 of 2023
Decided On : 11-07-2023
Advocate Appeared:
For the Petitioner: Manoj Kumar Keshri.
For the Respondent: Vikash Kumar.
IMPORTANT POINT
The law only favors the diligent in availing the remedies provided under the statute within the stipulated time.
Headnote:
BGST Act - Assessment Order - Section 107, Section 107(4) - The court discussed the provisions of Section 107 of the Bihar Goods and Services Tax Act, 2017, which permits an appeal to be filed within three months and also allows for delay condonation with satisfactory reasons within a further period of one month. The court also highlighted the Supreme Court's decision on the extension of limitation due to the pandemic situation and emphasized that the law only favors the diligent.
Fact of the Case:
The petitioner challenged an assessment order for the assessment year 2019-2020, alleging that it was ex-parte and claiming an excess amount of tax paid which is liable to be refunded. The appellate order rejected the appeal on the ground of delay in filing the appeal.
Finding of the Court:
The court found that the petitioner did not avail the alternate remedies available within the stipulated time and dismissed the writ petition.
Issues: Delay in filing the appeal, applicability of delay condonation provisions under Section 107(4) of the BGST Act, and the invocation of extraordinary jurisdiction under Article 226.
Ratio Decidendi: The court emphasized that the law only favors the diligent and discussed the contours of the jurisdiction under Article 226 of the Constitution of India to interfere with appellable orders.
Final Decision: The writ petition was dismissed.
JUDGMENT :
K. VINOD CHANDRAN, J.
1. The petitioner is before this Court raising a challenge against an assessment order which was not properly appealed against. The assessment order was passed on 06.02.2021 and an appeal against the same was filed on 09.12.2022, grossly delayed. The assessment order is produced at Annexure-7 and the appellate order rejecting the appeal on the ground of delay is produced at Annexure-8.
2. The petitioner alleges that the assessment order was itself ex-parte and the returns could not be uploaded since the Accountant was not fully conversant with the practice and procedure under the Bihar Goods and Services Tax Act, 2017 (“BGST Act” hereafter).
3. We have to immediately notice that the assessment order is for the assessment year 2019-2020 and there cannot be a contention raised that it was during the transition period that the assessee failed to upload the return. The petitioner also claimed that there is an excess amount of tax paid which is liable to be refunded.
4. The appellate order specifically noticed Section 107 of the BGST Act which permits an appeal to be filed within three months and also apply for delay condonation with satisfactory reasons within a further period of one month.
5. The Hon’ble Supreme Court in Suo Motu Writ Petition (C) No. 3 of 2020, In Re: Cognizance For Extension of Limitation due to the pandemic situation saved the limitation between 15.03.2020 till 28.02.2022. Therein, due to the pandemic situation limitation was saved between 15.03.2020 till 28.02.2022. 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 Hon’ble 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. Even if that be deemed to be applicable then the appeal ought to have been filed by 28.06.2022.
6. The appeal was filed only on 09.12.2022 without annexing a certified copy of the assessment order which was to be filed within seven days from that date. Despite opportunity given to the petitioner by the appellate authority to file certified copy of the assessment order on 24.01.2023, 08.02.2023 and 06.03.2023, he did not file the same and accordingly, the appeal was rejected on the ground that the petitioner is not interested in the matter and that the appeal was also filed after lapse of twenty months. Though twenty months cannot be deemed to be the delay occasioned, it was not within the time provided under section 107(4) of the BGST Act.
7. In the above circumstances, we find no reason to invoke the extraordinary jurisdiction under Article 226, especially since it is not a measure to be employed where there are alternate remedies available and the assessee has not been diligent in availing such alternate remedies within the stipulated time.
8. The learned counsel relies on Annexure-10 judgment dated 09.12.2022 passed in CWJC No. 15607 of 2022 titled as M/s G. Power Solution vs. State of Bihar and Others by a co-ordinate Bench of this Court, which proceeds to interfere with an ex-parte assessment order passed in violation of principles of natural justice. Here the petitioner does not have a contention of no notice having been issued. If the assessee does not cooperate in the assessment proceedings, then the assessing officer has to proceed ex-parte and there can be no contention raised of violation of principles of natural justice. The learned counsel then asserts the right of appeal before the Tribunal, which Tribunal under the BGST Act has not been constituted. We do not find any merit in the said contention since the 1st appellate authority has dismissed the appeal on grounds of delay and second appeal could only be on that ground,
