2023 (9) TMI 1352 - HC - GST

Validity of assessment order - appealable order or not - petitioner s contention is that both the assessment orders are ex parte and the orders themselves were brought to the notice of the petitioner only when notice of attachment was issued to the bank in which the petitioner maintains an account - violation of principles of natural justice - HELD THAT - The Hon ble Supreme Court in IN RE COGNIZANCE FOR EXTENSION OF LIMITATION 2022 (1) TMI 385 - SC ORDER 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 appealable then the appeal ought to have been filed by 28.06.2022. Here, the petitioner has not filed an appeal. 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 - It is found 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. Petition dismissed.

Summary

Issues involved: Challenge to assessment orders for the years 2018-2019 and 2019-2020, failure to claim input tax, appealability of assessment orders, availability of statutory remedies, invocation of Article 226 of the Constitution.

Challenge to Assessment Orders: The petitioner challenged assessment orders for the years 2018-2019 and 2019-2020, claiming lack of proper service of notice and orders. The contention was that the petitioner was not issued a physical notice, although notices were uploaded on the portal, which is a valid mode of service as per Section 169 of the Bihar Goods and Services Tax Act, 2017. The petitioner's argument that electronic mode should not have been chosen during the Covid period was deemed unconvincing, given the prevalent digital practices at the time.

Failure to Claim Input Tax: Another contention raised was the non-accordance of input tax due to the petitioner's failure to make a claim in accordance with the provisions of the Act.

Appealability of Assessment Orders: The assessment orders challenged were appealable under Section-107 of the Bihar Goods and Services Tax Act. However, the petitioner did not file an appeal within the prescribed timeframe, missing the opportunity to avail the statutory remedy.

Statutory Remedies and Article 226: The judgment highlighted the importance of availing statutory remedies before seeking recourse under Article 226 of the Constitution. The Hon'ble Supreme Court's directives regarding limitation periods and the availability of condonation of delay were cited to emphasize the necessity of following the prescribed procedures for appeals.

Invocation of Article 226: The High Court reiterated the principles governing the invocation of Article 226, emphasizing that it is a discretionary remedy to be used in cases of breach of natural justice, jurisdictional errors, or fundamental rights violations. In this case, since the petitioner did not avail the appellate remedy provided under Section 107 of the BGST Act, the Court held that there was no valid ground for invoking Article 226 to challenge the assessment orders.

Dismissal of Writ Petition: Ultimately, the Court dismissed the writ petition, noting the petitioner's failure to avail statutory remedies, the absence of jurisdictional errors or violations of natural justice, and the lack of valid contentions beyond the issue of notice service. The Court emphasized that when specific periods for delay condonation are provided, there can be no extension of such periods through Article 226 of the Constitution.