2023 (9) TMI 627 - HC - GST

Maintainability of petition - alternative remedy not availed - approaching directly to High Court - challenge to assessment order - determination of the taxable turnover and the tax payable - HELD 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. 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. 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 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 - 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 - gross delay also stands against the petitioner. Petition dismissed.

Summary

Issues Involved:
The issues involved in the judgment are failure to avail statutory remedies, jurisdiction under Article 226 of the Constitution of India, and dismissal of the writ petition.

Failure to Avail Statutory Remedies:
The petitioner directly moved the writ petition without availing the statutory remedies available under the BGST Act. The Hon'ble Supreme Court had provided for the condonation of delay if an appeal is filed after the limitation period. However, the petitioner failed to file an appeal within the extended timeline. The judgment emphasized that the petitioner cannot challenge the assessment order without utilizing the appellate remedy provided under Section 107 of the BGST Act within the specified time frame.

Jurisdiction under Article 226 of the Constitution of India:
The judgment highlighted the wide powers conferred on the High Court under Article 226, but also stressed that the remedy of writ is discretionary. The High Court can refuse to exercise its discretion if there is an effective alternative remedy available. It was reiterated that interference by the High Court is warranted only in cases of breach of natural justice, lack of jurisdiction, infringement of fundamental rights, or failure to follow due procedure. In the absence of any such grounds raised by the petitioner, the High Court dismissed the writ petition.

Dismissal of the Writ Petition:
Due to the petitioner's failure to avail the statutory appellate remedy, the High Court dismissed the writ petition. The judgment emphasized that when a specific period for delay condonation is provided, there can be no extension of that period by the Appellate Authority or the Court under Article 226 of the Constitution. The Court found no jurisdictional error, violation of natural justice, or abuse of the court process alleged by the petitioner. Consequently, the writ petition was dismissed based on the petitioner's failure to utilize the available statutory remedies and the absence of grounds for invoking the extraordinary jurisdiction under Article 226 of the Constitution of India.