Remedy cannot be availed under writ jurisdiction when alternate remedies not availed efficaciously

[CA Bimal Jain]

The Hon’ble Patna High Court in the case of M/S RAJESH KUMAR DUBEY VERSUS UNION OF INDIA AND OTHERS [2024 (5) TMI 1374 - PATNA HIGH COURT] 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 M/S RAJESH KUMAR DUBEY VERSUS UNION OF INDIA AND OTHERS [2024 (5) TMI 1374 - PATNA HIGH COURT] 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 [2021 (3) TMI 497 - SC ORDER] 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.

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