2023 (9) TMI 903 - HC - GST

Maintainability of petition - availability of alternative, efficacious, statutory remedy of appeal - Condonation of delay of two years in filing the appeal - HELD THAT - Upon hearing learned counsel for the parties and bearing in mind the concept of justice, equity and good conscience besides bona fides of the petitioner, the delay caused due to pendency of the writ petition should not come in the way of the petitioner in agitating the order of assessment before the appellate forum. Appeal disposed off with the order that in case, appeal is filed within 30 days under Section 107 of GST Act, the Appellate Authority shall not insist on the question of limitation and address the issues raised by the petitioner on facts and in law as well as alleged irregularities in the matter of framing of impugned assessment.

Summary

Issues involved:
Petitioner challenging order u/s 74 of GST Act before High Court u/s 226 of Constitution of India.

Summary:
The petitioner, a manufacturer and trader, approached the High Court challenging the order dated 08.12.2020 passed by the Assessing Officer u/s 74 of the GST Act. The petitioner raised several submissions criticizing the impugned order, including non-supply of attachments despite a show-cause notice, lack of consideration of facts by the Assessing Officer leading to a substantial tax liability, and non-consideration of the petitioner's reply. The High Court noted that the show-cause notice was issued and the order was passed by the Competent Authority, and the petitioner should have approached the appellate forum u/s 107 of the GST Act. Despite the alleged procedural irregularities, the High Court believed that these pleas could have been addressed in the appellate forum if raised.

After some arguments, the petitioner's counsel sought permission to withdraw the writ petition and file an appeal u/s 107 of the GST Act, requesting condonation of the delay in filing the appeal. The respondent's counsel initially opposed this, stating that the petitioner was aware of the alternative remedy of appeal when filing the writ petition and that the delay due to the pendency of the writ petition should not be condoned. However, considering the principles of justice, equity, and good conscience, the High Court allowed the petitioner to file an appeal within 30 days u/s 107 of the GST Act. The Appellate Authority was directed not to insist on the question of limitation and to address the issues raised by the petitioner on facts, law, and alleged irregularities in the assessment. The petitioner was also granted the liberty to apply for interim protection, subject to legal constraints, which the Appellate Authority should promptly consider.