2024 (5) TMI 311 - HC - GST

Time limitation - appeal not filed within the period of limitation as prescribed under Section 107 of the RGST Act, 2017/ the CGST Act, 2017 - Challenge to Show Cause Notice - Levy of tax liability along with interest and penalty on Royalty - HELD THAT - Present is a case where the petitioner did not even file appeal and allowed the order passed in assessment proceedings to become final and thereafter approached this Court by filing writ petition seeking to challenge the determination of tax, interest and penalty by the competent authority vide order dated 13.03.2023. Present is not a case where the order u/s 74 of the RGST Act, 2017/ the CGST Act, 2017 levying tax along with interest and penalty was passed without giving any opportunity of hearing to the petitioner. Even according to the petitioner, he was issued show cause notice and thereafter, impugned order was passed. In the writ petition, no plausible explanation has been offered as to why the petitioner did not take recourse to the remedy of statutory appeal. It, therefore, appears that the petitioner consciously did not choose to take recourse to the remedy of appeal as provided under Section 107 of the RGST Act, 2017/the CGST Act, 2017, but waited for the expiry of the period of limitation for filing appeal as also the maximum period of delay which could be condoned in the exercise of powers conferred upon the appellate authority under the provisions of Section 107 of the RGST Act, 2017/ the CGST Act, 2017. Having not preferred an appeal, the petition in the present case, in view of the decision of Hon'ble Supreme Court in the case of ASSISTANT COMMISSIONER (CT) LTU, KAKINADA ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED 2020 (5) TMI 149 - SUPREME COURT , is not maintainable. Petition dismissed.

Summary

Issues:
The correctness and validity of the show cause notice and order u/s 74 of the Rajasthan Goods and Services Tax Act, 2017 and the Central Goods and Services Tax Act, 2017 for financial year 2018-19.

Summary:
The petitioner challenged a show cause notice and order issued by Respondent No. 3 under Section 74 of the RGST Act, 2017/CGST Act, 2017 for the financial year 2018-19, directing the petitioner to deposit a specific amount towards service tax on royalty, interest, and penalty. Despite multiple grounds raised in the writ petition to challenge the notice and order, the petitioner did not file an appeal within the prescribed limitation period or seek condonation for delay. Referring to the decision of the Hon'ble Supreme Court in a similar case, it was argued that the present writ petition is not maintainable due to the failure to utilize the statutory remedy of appeal.

In the case of Glaxo Smith Kline Consumer Health Care Limited, the High Court entertained a challenge to an assessment order despite the statutory remedy of appeal being foreclosed due to a delay in filing. The Supreme Court held that the remedy of appeal is a creation of statute and emphasized the importance of adhering to statutory timelines for filing appeals. The Court found that the petitioner in that case failed to provide a satisfactory explanation for the delay in filing the appeal, leading to the dismissal of the writ petition.

The Supreme Court concluded that the writ petition challenging the assessment order was not maintainable due to the failure to file an appeal within the statutory period. In the present case, the petitioner did not file an appeal against the order determining tax, interest, and penalty, and instead approached the Court through a writ petition. The Court noted that the petitioner did not offer a plausible explanation for not availing the statutory appeal remedy, indicating a conscious choice to wait for the limitation period to expire. As a result, the Court held that the writ petition, in line with the precedent set in the Glaxo Smith Kline case, was not maintainable and dismissed the petition.