Case Law Details
Rajesh Kumar Dubey through proprietor Rajesh Kumar Dubey Vs Union of India (Patna High Court)
The Hon’ble Patna High Court in the case of Rajesh Kumar Dubey v. Union of India [CWJ Case No. 5113 of 2024 dated April 23, 2024] dismissed the writ petition and held that remedy cannot be availed under writ jurisdiction when the alternate remedies have not been availed efficaciously.
Facts:
Rajesh Kumar Dubey (“the Petitioner”) filed a writ petition against the appellate order dated January 9, 2024 (“the Impugned Order”) which was rejected on the ground that there was delay in filing of the appeal. The appeal was filed by the Petitioner against the order dated August 16, 2019, (“the Order”) for cancellation of GST registration.
Issue:
Whether remedy can be availed under writ jurisdiction when alternate remedies have not been availed efficaciously?
Held:
The Hon’ble Patna High Court in the case of CWJ Case No. 5113 of 2024 held as under:
- Observed that, Section 107 of the Bihar Goods and Services Tax Act, 2017 (“the BGST Act”) states that the appeal has to be filed within the period of three months and apply for condonation of delay with satisfactory reasons within a further period of one month.
- Further observed that, the Hon’ble Supreme Court in the case of In Re Cognizance for Extension of Limitation [Suo Moto Writ Petition (C) No. 3 of 2020] wherein the limitation was saved for period between March 15, 2020 to February 28, 2022. Further, the appeal could be filed within ninety days from March 1, 2022.
- Noted that, the appeal has to be filed against order on or before May 30, 2022 but the appeal was filed November 25, 2023 after about one year and five months from the date on which even the extended limitation period expired.
- Opined that, the extraordinary jurisdiction under Article 226 of the Constitution is not to be invoked in case where there are alternate remedies available and the Assessee has not been diligent in availing such alternate remedies within the stipulated period of time.
- Held that, the writ petition is dismissed.
FULL TEXT OF THE JUDGMENT/ORDER OF PATNA HIGH COURT
The writ petition is filed against the appellate order dated 09.01.2024 (Annexure-5) which was rejected on the ground of delay. The appeal was filed against Annexure-2, order of cancellation of registration dated 16.08.2019.
2. Admittedly, the appellate remedy was availed with gross delay.
3. Section 107 of the Bihar Goods and Services Tax Act, 2017 (“BGST Act” hereafter) 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. We have to take into account the saving of limitation granted by the Hon’ble Supreme Court in Suo Motu Writ Petition (C) No. 3 of 2020, In Re: Cognizance For Extension of Limitation, 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.
4. Here, the order impugned in the appeal was dated 16.08.2019. An appeal was to be filed on or before 30.05.2022, as permitted by the Hon’ble Supreme Court and if necessary with a delay condonation application within one month thereafter. The appeal is said to have been filed only on 25.11.2023, after about one year five months from the date on which even the extended limitation period expired.
5. 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. The law favours the diligent and not the indolent.
6. Further, the Government had come out with an Amnesty Scheme by Circular No. 3 of 2023, by which the registered dealers, whose registrations were cancelled were permitted to restore their registration on payment of all dues between 31.03.2023 to 30.06.2023. The petitioner did not avail of such remedy also.
7. The petitioner does not have any case that the show-cause notice was not received by him. Further, it is also pertinent that the reason stated in the show-cause notice for cancellation of registration is that the petitioner has not filed returns for a continuous period of six months. The petitioner does not have a case that he had in fact filed a return in the continuous period of six months.
8. The writ petition would stand dismissed.
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