Case Law Details
Narayani Industry Vs State of Bihar (Patna High Court)
The esteemed Patna High Court, in the case of M/s. Narayani Industry v. State of Bihar [Civil Writ Jurisdiction No. 11333 of 2023 dated August 11, 2023], ruled that in instances where a statute prescribes a definite timeframe for the condonation of delay, the Appellate Authority under Article 226 of the Indian Constitution does not possess the authority to extend this stipulated period.
Facts:
An Inspection was conducted on the Premises of M/s. Narayani Industry (“the Petitioner”) basis such inspection the Revenue Department (“the Respondent”) issued three orders dated March 04, 2023, March 10, 2023 and March 18, 2023 and all these orders were appealable under section 107 of the Bihar Goods and Services Tax Act, 2017 (“the BGST Act”). However, the Petitioner did not appealed such orders.
Aggrieved by the Orders the Petitioner filed writ before the Hon’ble Patna High Court.
The Respondent contended that the Petitioner has not availed the appeal remedy and has chosen to approach writ Court under Article 226 of the Constitution of India without exercising appeal.
Issue:
Whether the Petitioner can approach writ Court directly without filing appeal before the Appellate Authority?
Held:
The Hon’ble Patna High Court Civil Writ Jurisdiction No.11333 of 2023 held as under:
- Noted that, in the present case there is no jurisdictional error or violation of principles of natural justice or abuse of process of law averred or argued by the Petitioner in the above writ petition.
- Relied upon the Judgement of State of H.P & Ors. v. Gujarat Ambuja Cement Limited & Anr [(2005) 6 SCC 499] wherein the Hon’ble Supreme Court held that if an assessee approaches the High Court without availing the alternate remedy, assessee should ensured that it has made out a strong case or that there exists good grounds to invoke the extraordinary jurisdiction.
- Opined that, there is no ground stated in the writ petition which would enable invocation of the extraordinary remedy under Article 226 of Indian Constitution.
- Held 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 Indian Constitution.
FULL TEXT OF THE JUDGMENT/ORDER OF PATNA HIGH COURT
The petitioner, an assessee under the Bihar Goods and Services Tax Act, 2017 (for brevity “BGST”) is aggrieved with the assessment order passed with determination of tax both under the Central Goods and Services Tax Act, 2017 (CGST) and State Goods and Services Tax Act, 2017 (SGST), as also the liability to interest and penalty as seen from Annexure-3 Orders. There are three orders produced as 04.03.2023, 10.03.2023 and 18.03.2023. All these orders were appealable under section 107 of the BGST Act. However, sub-section (4) of Section 107 provides for a period of three months within which an appeal can be filed and a further period of one month within which a delayed appeal can be considered by the First Appellate Authority; on sufficient reasons being shown for the delay occasioned. The last of the orders produced as Annexure-3 is dated 18.03.2023 and the appeal could have been filed on or before 17.06.2023. A further time of one month; that is till 16.07.2023 was available to file a delayed appeal with reasons cited for the delay. The petitioner has not availed of the appellate remedy and has chosen to approach this Court under Article 226 of the Constitution of India after the appeal period is over and also the period within which an appeal could have been filed with a delay condonation application.
2. We also notice the contours of the jurisdiction under Article 226 of the Constitution of India to interfere with appealable orders laid down by the Hon’ble Supreme Court in State of H.P & Ors. v. Gujarat Ambuja Cement Limited & Anr.; (2005) 6 SCC 499. It has been 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 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.
3. 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.
4. 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.
5. 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.
6. We find absolutely no reason to entertain the writ petition and dismiss the same.
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