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2023 (10) TMI 141 - HC - GSTMaintainability of writ petition - gross delay in filing appeal - jurisdiction under Article 226 of the Constitution of India to interfere with appealable orders - HELD THAT - It is required to immediately notice that the assessment order is for the assessment year 2019-2020 and there cannot be a contention raised that it was during the transition period that the assessee failed to upload the return. The petitioner also claimed that there is an excess amount of tax paid which is liable to be refunded. The appeal was filed only on 09.12.2022 without annexing a certified copy of the assessment order which was to be filed within seven days from that date. Despite opportunity given to the petitioner by the appellate authority to file certified copy of the assessment order on 24.01.2023, 08.02.2023 and 06.03.2023, he did not file the same and accordingly, the appeal was rejected on the ground that the petitioner is not interested in the matter and that the appeal was also filed after lapse of twenty months. Though twenty months cannot be deemed to be the delay occasioned, it was not within the time provided under section 107(4) of the BGST Act. The Hon ble Supreme Court In Re Cognizance For Extension of Limitation 2022 (1) TMI 385 - SC ORDER due to the pandemic situation saved the limitation between 15.03.2020 till 28.02.2022. Therein, 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. There are no reason to invoke the extraordinary jurisdiction under Article 226, especially since it is not a measure to be employed where there are alternate remedies available and the assessee has not been diligent in availing such alternate remedies within the stipulated time. It is to be noticed that the contours of the jurisdiction under Article 226 of the Constitution of India to interfere with appellable orders laid down by the Hon ble Supreme Court in STATE OF HP. AND OTHERS VERSUS GUJARAT AMBUJA CEMENT LTD. AND ANOTHER (AND OTHER APPEALS) 2005 (7) TMI 353 - SUPREME COURT . It has been held that if an assessee approaches the High Court without availing the alternate remedy, it should be ensured that the assessee has made out a strong case or that there exists good grounds to invoke the extraordinary jurisdiction. While reiterating that Article 226 of the Constitution confers very wide powers on the High Court, it was clarified that nonetheless the remedy of writ is an absolutely discretionary remedy. The High Court, hence, can always refuse the exercise of discretion if there is an adequate and effective remedy elsewhere - The High Court would also interfere if it comes to a conclusion that there is infringement of fundamental rights or where there is failure of principles of natural justice or where the orders and proceeding are wholly without jurisdiction or when the vires of an Act is challenged. There is no such plea made by the petitioner in the present case against the impugned order. Petition dismissed.
Issues Involved:
Challenge against assessment order due to delayed appeal, Ex parte assessment order, Refund claim of excess tax paid, Delay condonation under Section 107 of BGST Act, Invocation of extraordinary jurisdiction under Article 226, Availability of alternate remedies, Interference with appellate orders, Constitutionality of Tribunal under BGST Act, Jurisdiction under Article 226 of the Constitution of India. Delayed Appeal and Ex Parte Assessment Order: The petitioner challenged an assessment order for the year 2019-2020, alleging it was ex parte and returns could not be uploaded due to lack of familiarity with BGST Act procedures. The appellate order cited Section 107 of the BGST Act, allowing appeals within three months and condonation of delay with satisfactory reasons within one month. Despite the pandemic-related extension granted by the Supreme Court, the petitioner filed the appeal on 09.12.2022, well beyond the permissible timelines. Refund Claim and Rejection of Appeal: The petitioner claimed an excess tax payment and sought a refund. However, the appeal filed on 09.12.2022 did not include a certified copy of the assessment order as required within seven days. Despite multiple opportunities, the petitioner failed to provide the necessary documentation, leading to the rejection of the appeal on grounds of lack of interest and significant delay. Invocation of Extraordinary Jurisdiction under Article 226: The court found no basis to invoke Article 226, emphasizing the importance of exhausting alternate remedies within stipulated timeframes. The petitioner's lack of diligence in pursuing available avenues precluded the court from exercising its extraordinary jurisdiction. Interference with Appellate Orders and Tribunal Constitutionality: The petitioner's reliance on a judgment interfering with an ex-parte assessment order was deemed inapplicable since no notice violation was claimed. The absence of a constituted Tribunal under the BGST Act further weakened the petitioner's argument, as the first appellate authority dismissed the appeal based on delay, limiting the grounds for a second appeal. Jurisdiction under Article 226 of the Constitution of India: The court referred to established principles regarding the exercise of discretion under Article 226, highlighting the need for strong grounds or breaches of natural justice to warrant interference. Without specific pleas against the impugned order, the court dismissed the writ petition, underscoring the discretionary nature of Article 226 remedies. In conclusion, the court dismissed the writ petition due to the petitioner's failure to meet the necessary criteria for invoking extraordinary jurisdiction under Article 226, emphasizing the importance of timely appeals and diligent pursuit of available remedies in challenging assessment orders under the BGST Act.
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