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TMI Blog2022 (12) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... 28206, 28415, 28600, 29113, 29120, 29172, 29438, 29745, 29755, 30046, 30075, 30108, 30241, 30279, 30356, 30144 30283 of 2022 WMP Nos.14082, 25158, 17339, 17340, 24630, 24633, 24684, 25707, 25709, 26253, 27051, 29658, 29659, 26800, 29499 29501 of 2022 WMP.Nos.5365, 5369, 5537, 5541, 5544 5547 of 2020 WMP.Nos.18606, 18608, 25661, 25674, 25776, 26589, 26591, 27059, 27060, 27148, 27420, 27499, 27500, 27887, 28410, 28413, 28399, 28401, 28456, 28771, 28773, 29140, 29157, 29489, 29491, 29537, 29538, 29669, 29671, 29710, 29711, 29716 29718 of 2022 Honourable Dr. Justice Anita Sumanth For the Petitioners : Mr.T.R.Ramesh, Mr.Ramanathan For Mr.K.Soundara Rajan, Mr.D.Vijayakumar, Mr.K.M.Malarmannan, Mr.B.Raveendran, Mr.M.R.Jothimanian, Mr.Ramanathan For Mr.R.Senniappan, Mr.A.Ganapatheeswaran, Mr.S.Ramanan, Mr.N.Murali, Mr.Adithiya Reddy, Mr.P.Muthamizh And Others For the Respondents : Mr.Pramod Kumar Chopda, Senior Standing Counsel, Mr.Mohanamurali, Senior Panel Counsel, Mrs.Hema Muralikrishnan, Senior Standing Counsel, Mr.T.Ramesh Kutty, Senior Standing Counsel, Mr.Sai Srujan Tayi, Senior Panel Counsel, Mr.Pramod Kumar Chopda, Senior Standing Counsel And Others C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut a certain limitation for filing of the remedy concerned, the authorities under the statute cannot traverse beyond the prescribed period. The question as to whether the High Court, in exercise of jurisdiction under Article 226 of the Constitution will do so, has been deliberated by the Hon'ble Supreme and High Courts and the position obtaining in this regard is, as a norm, in the negative. 6. However, jurisdiction under Article 226 is wide and empowers the Court to do substantial justice, over and beyond the ken of a statutory authority. Exceptions may be thus be carved out from the norm. Courts have thus proceeded to examine the facts and circumstances leading to the delay in availing the statutory remedy. If, in the opinion of the Court, the reasons set out for the delay are well founded, discretion may well be exercised in favour of the assessee concerned, and the delay condoned. 7. This position has been reiterated by the Hon'ble Supreme Court in the case of Assistant Commissioner (CT) Vs. Glaxo Smith Kline Consumer Health Care Limited, [C.A.No.2413 of 2020 dated 06.05.2020]. I have, in Keshav Ply N Laminates Vs. The Assistant Commissioner (ST), W.P.Nos.15679 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eard and the writ petition came to be allowed quashing the order of assessment and relegating the matter to the assessing authority to be redone afresh after hearing the petitioner. It is thus that the revenue carried the matter in appeal to the Supreme Court arguing that the High Court had exceeded its jurisdiction and committed a manifest error in admitting a writ petition beyond the period of limitation set out in the concerned statute. A plethora of case law on this issue was examined by the Supreme Court. 15. The cases discussed are, Mafatlal Industries Ltd. v. Union of India (1997 (89) E.L.T. 247 (S.C.)); K.S. Rashid Son v. Income Tax Investigation Commission (AIR 1954 SC 207); Thansingh Nathmal v. Superintendent of Taxes (AIR 1964 SC 1419); Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad now Zila Parishad (AIR 1969 SC 556); Oil and Natural Gas Corporation Limited v. Gujarat Energy Transmission Corporation Limited ((2017) 5 SCC 42); Titaghur Paper Mills Co. Ltd. v. State of Orissa ((1983) 2 SCC 433. Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission ((2010) 5 SCC 23); ITC Ltd. v. Union of India (1998 (101) E.L.T. 9 (S.C.)); Ni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. The wide powers with which the High Court is invested must not be exercised in such a way that are inconsistent with legislative intent prescribing a rigid limitation under statute. In conclusion, the Bench reverses the decision of the High Court and allows the writ appeals saying that no case have been made out either before the High Court, and no finding has been recorded by the High Court in regard to its decision for entertaining the writ petition beyond the period of statutory limitation. 20. Article 226 of the Constitution of India is thus, elastic enough to accommodate challenges to proceedings beyond the period provided under limitation, although such discretion has to be exercised very sparingly and the situation causing the delay examined closely and minutely. 21. This then, is the basis upon which I propose to dispose this batch of Writ Petitions. I have considered the circumstances leading to the delayed challenge to the impugned orders of assessment in each case, individually. In doing so, I envisage two road blocks that the petitioners would have to cross. The first one relates to the delay occasioned in approaching this Court beyond the period of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apart, the explanation given by the petitioner in regard to the delay of filing of appeal, which is 4 days beyond the statutory time limit is that the certified copy of order dated 13.04.2022 passed by R2 rejecting the application seeking revocation of cancellation, has been received belatedly, but there is no proof placed on file in this regard. 12. However, learned Standing Counsel does not have any serious objection to the appellate authority entertaining the appeal, bearing in mind the quantum of delay of 4 days only. In light of the aforesaid, the appeal stands restored to the file of the appellate authority/R1, who shall take the appeal on file without reference to limitation, but ensuring compliance with all other statutory conditions, and, if found maintainable on all other aspects, shall dispose the same expeditiously, and in accordance with law. 13.This Writ Petition is dismissed, though with liberty as above. No costs. Connected Miscellaneous Petitions are closed. W.P.No.26653 of 2022: 14. The appeal has been filed before the first appellate authority as against the cancellation of registration, which is dated 25.01.2021, with a delay of 87 days. The jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and financial loss that the petitioner has faced on account of the COVID -19 pandemic. 25.For the reasons as aforesaid, seeing as there is no serious objection put forth by the learned standing counsel to the appellate authority entertaining the appeal, and bearing in mind the quantum of delay of 2 days only, the appeal stands restored to the file of the appellate authority/R1, who shall take the appeal on file without reference to limitation, but ensuring compliance with all other statutory conditions, if any. If found maintainable on all other aspects, R2 shall dispose the appeal expeditiously, and in accordance with law. 26.This Writ Petition is dismissed with liberty as above. No costs. W.P.No.14879 of 2022: 27.Mr.Pramod Kumar Chopda, learned Senior Standing Counsel for the respondent would not contest this Writ Petition based on written instructions of the Assessing Authority dated 15.11.2022 to the effect that the petitioner has filed GSTR 3B returns upto November, 2019 along with late fee. 28.That apart, the petitioner is stated to be engaged in the business of providing security services and the liability to goods and services tax is under reverse charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with acknowledgement due, to the person for whom it is intended or his authorised representative, if any, at his last known place of business or residence; or by sending a communication to his e-mail address provided at the time of registration or as amended from time to time; or by making it available on the common portal; or by publication in a newspaper circulating in the locality in which the taxable person or the person to whom it is issued is last known to have resided, carried on business or personally worked for gain; or if none of the modes aforesaid is practicable, by affixing it in some conspicuous place at his last known place of business or residence and if such mode is not practicable for any reason, then by affixing a copy thereof on the notice board of the office of the concerned officer or authority who or which passed such decision or order or issued such summons or notice. (2) Every decision, order, summons, notice or any communication shall be deemed to have been served on the date on which it is tendered or published or a copy thereof is affixed in the manner provided in sub-section (1). (3) When such decision, order, summons, noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed absent. The petitioner has challenged an order dated 08.03.2022, which is the effective date of cancellation of registration. No statutory appeal has been filed by the petitioner, who has proceeded to file the Writ Petition on 12.09.2022. No explanation/justification has been set forth in the affidavit, except to state that the order was not served through registered post or any other mode of substituted service, other than uploaded on the portal. 43.I have, in W.P.No.25666 of 2022, decided the above issue against the assessee (paragraphs 33 to 41 above) and the same order is taken to be passed in this Writ Petition as well. This Writ Petition stands dismissed. No costs. W.P.No.27552 of 2022: 44.The petitioner has challenged an order dated 05.04.2022, which is the effective date of cancellation of registration. No statutory appeal has been filed by the petitioner, who has proceeded to approach this Court by way of Writ Petition on 12.10.2022. No explanation/justification for the delay has been set forth except to state that the order was not served through registered post or any other mode of substituted service other than uploaded on the portal. 45.I have, in W. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation filed on 29.04.2022. Needless to say, a decision on delay, if any, in filing the application for condonation shall be taken by the authority, in accordance with law. 54. This writ Petition is disposed as above. No costs. W.P.No.27759 of 2022: 55.The petitioner has challenged order dated 12.03.2022, which is the effective date of cancellation of registration. As against the same, no appeal has been filed by the petitioner, who has straight away filed this Writ Petition on 13.10.2022. No reasons have been assigned in the writ affidavit explaining the delay, except to state that the order was not served through registered post or any other mode of substituted service other than uploading upon the portal. Hence, the petitioner was unable to move the appellate authorities within the period of limitation. 56.I have, in W.P.No.25666 of 2022, decided the above issue against the assessee (paragraphs 33 to 41 above) and the same order is taken to be passed in this Writ Petition as well. This Writ Petition stands dismissed. No costs. Matters coming under the SGST Act W.P.No.30356 of 2022: 57.The petitioner has challenged an order in first appeal. Normal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it filed in support of the Writ Petition is that the Accountant had left the organization. The petitioner also states that notices were sent to the Consultant s e-mail ID and hence the petitioner was not aware of the same. 65. This Court is unable to accept these reasons, since the petitioner has, in fact, filed revocation application on 01.04.2019 and thus was well aware of the cancellation of registration in April, 2019 itself. Thus, nothing prevented the petitioner from taking timely action in this regard. The reasons set out are found to be contrary to the sequence of dates and events that have transpired in this matter. 66. In light of the aforesaid, this Writ Petition is dismissed. No costs. W.P.Nos.4686 and 4693 of 2020: 67. Mr.Prashanth Kiran, learned Government Advocate submits that the registration of the petitioner has been restored. 68. Recording the aforesaid, the impugned order is set aside and these Writ Petitions are allowed. No costs. W.P.No.19334 of 2022: 69. The order of cancellation is dated 07.08.2019 and the present Writ Petition has been filed on 22.07.2022 without assigning any reason for the intervening delay. I thus find no jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2022: 81. The order of cancellation is dated 09.05.2022, as against which appeal was filed on 09.09.2022 with a delay of 16 days. However, the said appeal has been rejected as being beyond the statutory period of limitation. 82. The petitioner has furnished some explanation for the delay stating that the Consultant has misunderstood the procedure for filing of returns, which the Court finds acceptable. 83. In such circumstances, and there being no serious objection by the learned counsel for the respondent, the appeal is restored to the file of the appellate authority, who shall hear the same on merits and pass orders expeditiously, and in accordance with law. 84. The impugned order is set aside and this Writ Petition is allowed. No costs. W.P.No.27768 of 2022: 85. The petitioner has prayed for a writ of certiorarified mandamus quashing order dated 09.03.2022 cancelling the registration under the provisions of the State GST Act and for a direction to the respondents to restore the registration. 86. As regards the prayer for certiorari, the Court is unable to accept the same, seeing as the petitioner has challenged the cancellation of registration by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner is permitted to file an appeal before the appellate authority within a period of four (4) weeks from date of receipt of this order. Appeal, if any, filed within the time frame fixed, shall be entertained by the appellate authority without reference to limitation, but ensuring compliance with all other statutory conditions, if any, and disposed in accordance with law. 98. This Writ Petition is dismissed with liberty. No costs. W.P.No.28133 of 2022: 99. The date of cancellation of registration is 28.03.2022. As against the same, the petitioner has neither filed revocation of cancellation nor appeal before the appellate authority, but has presented this Writ Petition on 17.10.2022. 100. Even reckoning the period of 120 days for filing appeal that expires on 27.07.2022, this Writ Petition has been filed beyond the period of three months after the expiry of the statutory timeline. The petitioner has stated that he was mentally affected on account of the loss in the business due to COVID- 19 pandemic. However, no evidence in this regard is placed before the Court. 101. Hence, and being unconvinced with the reason for the delay, this Writ Petition is dismissed. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of aforesaid, this Writ Petition is dismissed. No costs. W.P.No.29113 of 2022: 113. The order of cancellation is dated 03.01.2022 and the last date for filing of appeal was on 03.05.2022. The present Writ Petition has been filed on 31.10.2022. Though there is some explanation tendered for the delay, being the advanced age of the petitioner and ailments that have been suffered by him in the past, the same do not convince the Court as justifying the intervening delay. I thus find no necessity to intervene in the impugned order and the same stands confirmed. 114. This Writ Petition is dismissed. No costs. W.P.No.29120 of 2022: 115. The order of cancellation is dated 03.02.2022 and the last date for filing of appeal was on 05.06.2022. The present Writ Petition has been filed on 31.10.2022. Though there is some explanation tendered in regard to the age of the petitioner and ailments that have been suffered by him in the past, the same do not convince the Court as constituting sufficient justification for condoning the intervening delay. I thus find no justification to intervene in the impugned order and the same is confirmed. 116. This Writ Petition is dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. No costs. W.P.No.30046 of 2022: 128. The order of cancellation of registration is dated 14.02.2022, as against which appeal was filed on 26.07.2022 with a delay of 26 days. However, the said appeal has been rejected as being beyond the statutory period of limitation. 129. The petitioner has furnished some explanation for the delay citing ill health and financial constraints, which the Court finds acceptable. 130. In such circumstances, there being no serious objection by the learned counsel for the respondent, the appeal is restored to the file of the appellate authority, who shall hear the same on merits and pass orders in accordance with law. 131. The impugned order is set aside and this Writ Petition is allowed. No costs. W.P.No.30075 of 2022: 132. The petitioner is called absent. The order of cancellation of registration is dated 14.12.2021 and the last date for filing of appeal was 14.04.2022. The present Writ Petition has been filed on 09.11.2022 without assigning any reason for the intervening delay. I thus find no justification to intervene in the impugned order and the same is confirmed. 133. This Writ Petition is dismissed. No costs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the delay are stated to be that payments had been due from TANGEDCO for the supplies made and hence returns could not be filed. However, this Court is unable to accept to the request of the petitioner for condonation of the intervening delay as it is incumbent upon the petitioner to ensure statutory compliances within the timelines provided. 145. In light of aforesaid, this Writ Petition is dismissed. No costs. 146.This batch of writ petitions is thus disposed in light of the discussion above. Each writ petition has been considered on the strength of the relevant facts that emanate in that matter. I have thereafter examined whether there is a justification to intervene based upon the conclusion and ratio contained in the judgment of the Hon'ble Supreme Court in the case of Glaxo Smith Kline (supra). 147. Dehors the conclusions arrived at in the case of the respective petitioners, it is made clear that all petitioners are at liberty to seek restoration of registration in accordance with law and learned Standing counsels would also accede to this position. All connected miscellaneous petitions are closed and there shall be no order as to costs. - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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