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TMI Blog2024 (7) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... period once excluded cannot be counted for the purpose of computing the period for filing appeal, is well settled, but the said principle of law is not attracted to the petitioner s case herein. The petitioner is not entitled for exclusion of time on the ground that he filed writ petition. The same is also not sufficient ground seeking condonation of delay in filing appeal. Abuse of the process of Court - HELD THAT:- In KK. MODI VERSUS KN. MODI [ 1998 (2) TMI 566 - SUPREME COURT ] the Hon ble Apex Court in the context of Order 6 Rule 16 of Code of Civil Procedure, which provides that the Court may at any stage of the proceedings, order to be struck out, or amended any matter in any pleading inter alia which is otherwise an abuse of the process of the Court , while explaining the phrase abuse of the process of the court , cited relitigation as one of the examples as an abuse of the process of the Court. It was observed that it is an abuse of the process of the Court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicate. But if the same i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rary contrary to the provisions of the CGST / SGST Act 2017 without jurisdiction and in violation of Principles of Natural Justice and consequently set aside the Endorsement Proceedings of the 1st Respondent dated 27.05.2024 uploaded in the GST Portal on 27.05.2024 and Summary of the Order, dated 10.11.2022 of the 2nd Respondent and pass such other order or orders .. Facts of the case: 3. The petitioner M/s. Reddy Enterprises, Vijayawada challenges the Order dated 27.05.2024 (Ex.P1) passed by the Additional Commissioner (ST), Vijayawada (P1). By the said Order, the petitioner s appeal has been rejected at the admission stage on the ground that the appeal was filed beyond the prescribed limitation of three months, and also beyond further condonable period of one month under Sub-Section (4) of Section 107 of the Andhra Pradesh Goods and Services Tax Act, 2017 (in short APGST Act ), and the said Appellate Authority had no jurisdiction under the APGST Act to condone the delay beyond condonable period of one month. 4. The appeal was preferred against the Order of the Assistant Commissioner (ST), Governorpet Circle, Vijayawada-II Division (in short the Assessing Authority ) dated 10.11.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge, there is no ground for interference. However, all contentions of the petitioner; including substantiation of its objections are kept open. The Assessing Officer shall deal with the merits of those objections while passing the reasoned order. It is submitted on behalf of the petitioner that more than ₹30 crores have been paid. It is open to the petitioner to seek clarification in this regard from the High Court. The special leave petition is disposed of in the above terms. Pending applications, if any, are disposed of. 8. The Hon ble Apex Court did not interfere with the judgment dated 24.03.2023. However, all the contentions of the petitioner were kept open and the Assessing Officer was directed to deal with the merits of those objections while passing the reasoned order. Further, in view of the submissions advanced on behalf of the petitioner, as regards payment made of more than Rs. 30 crores, it was kept open to the petitioner to seek clarification in that regard from the High Court. 9. In W.P. No. 1433 of 2023 the petitioner filed I. A. No. 2 of 2023 for modification/relaxation of the condition of deposit of 50% of the tax component. 10. The petitioner again approac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order dated 10.11.2022 within six (6) weeks from the date of receipt of a copy of this order and upon such deposit, the 3rd respondent shall fix a date of personal hearing of the petitioner with regard to her objections to the proposed assessment and after hearing the petitioner, pass an Appropriate Order in accordance with governing law and rules expeditiously. In case, the petitioner fails to make the deposit as mentioned supra, this order shall be deemed cancel. 5. Challenging the judgment dated 24.03.2023, the petitioner filed Special Leave to Appeal (C) No(s). 9616 of 2023 which was disposed of by the Hon ble Apex Court vide order dated 17.05.2023, holding inter alia that there was no ground for interference. The order dated 17.05.2023 reads as under: It is contended by the petitioner that the entire amounts received by it include wages paid, ESI and EPF contributions cannot be included as a part of the taxable turnover. The Assessing Officer appears to have rejected this contention on which the petitioner approached the High Court. This Court notices that the High Court has relegated the matter to the Assessing Officer who is required to look into the matter afresh. Since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een mentioned of which 50% was directed to be deposited, the order is very clear. 11. Accordingly, I.A. No. 2 of 2023 is rejected. 12. Challenging the Order dated 28.02.2024, the petitioner preferred SLP(c) No. 9869 of 2024, which was dismissed by the Hon ble Apex Court vide Order dated 06.05.2024, which reads as under: Heard the learned senior counsel appearing for the petitioner. No case for interference is made out in exercise of our jurisdiction under Article 136 of the Constitution of India. The Special Leave Petition is accordingly dismissed. Pending application also stands disposed of. 13. Thereafter, on 10.05.2024, the petitioner filed the appeal under Section 107 of the APGST Act, with delay which has been rejected by the Appellate Authority vide impugned Order dated 27.05.2024. 14. The facts on record show and are admitted to the petitioner s counsel that the petitioner did not comply with the judgment and order dated 24.03.2023 passed in W.P. No. 1433 of 2023, even after the same was affirmed by dismissal of the SLP by the Hon ble Apex Court and even after rejection of the petitioner s application I.A. No. 2 of 2023 in W.P. No. 1433 of 2023, vide order dated 28.02.2024, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the period in terms of Section 14 of the Limitation Act. It is an accepted position that the appellant had filed a writ petition before the High Court on 24.02.2018, which was not entertained vide the order dated 07.03.2018 on the ground that the appellant should approach the Appellate Authority. The appellant is entitled to ask for exclusion of the said period in terms of Section 14 of the Limitation Act, 1963. Exclusion of time is different, and cannot be equated with condonation of delay. The period once excluded, cannot be counted for the purpose of computing the period for which delay can be condoned. Of course for exclusion of time under Section 14 of the Limitation Act, 1963, the conditions stipulated in Section 14 have to be satisfied. In the facts of the present case, we find that the period from the date of filing of the writ petition on 24.02.2018 and the date on which it was dismissed as not entertained viz., 07.03.2018, should have been excluded. The writ proceedings were maintainable, but not entertained. Bona fides of the appellant in filing the writ petition are not challenged. Further, immediately after the dismissal of the writ petition, the appellant did fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 226 of the Constitution of India. Once the petitioner had chosen to file the writ petition and the petitioner s writ petition was entertained, notwithstanding the existence of the statutory remedy of appeal and was decided setting aside the order of assessment, the petitioner cannot now take a U turn and file the appeal against the order of assessment, to avoid making compliance with the condition of the deposit of the amount as directed in W.P. No. 1433 of 2023, vide judgment dated 24.03.2023. 26. We are of the considered view that, the petitioner, now, cannot prefer the appeal and have a fresh round of litigation on the same subject. Any other view would amount to permit the petitioner to abuse the process of the Court. By permitting the petitioner to avail the remedy of appeal would be to permit the petitioner to bypass and ignore the orders passed by the writ court in W.P. No. 1433 of 2023, affirmed by the Hon ble Apex Court. That cannot be done. That would encourage the litigants like the petitioner to take chance firstly, by filing the writ petition, bypassing the statutory alternative remedy, and if the writ court s order, even if in favour of such petitioner, but by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings which are an abuse of their process. In the present case the High Court has held the suit to be an abuse of the process of the court on the basis of what is stated in the plaint. 43. The Supreme Court Practice 1995 published by Sweet Maxwell in paragraphs 18/19/33 (p. 344) explains the phrase abuse of the process of the court thus: This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material. 44. One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no previous writ petition filed, like in the present case. There was no finality attached to any previous Order passed in writ proceedings. The cause shown for the delay in filing the appeal beyond the condonable period was found sufficient by the writ Court, consequently, the writ court condoned the delay and directed the appellate authority to decide the appeal on merits. 32. Our conclusions are as under: A. The writ petitioner is not entitled for exclusion of time taken in writ proceedings and the subsequent proceedings from the period of limitation for filing appeal, for the reason that the petitioner s writ petition was entertained and the assessment order against which now the appeal has been filed was already set aside in the writ proceedings and as those orders were affirmed by the Hon ble Apex Court in SLP (c) No. 9616 of 2023, dated 17.05.2023 and SLP (c) No. 9869 of 2024, dated 06.05.2024. B. On the ground of filing of the writ petition, the petitioner cannot seek condonation of delay in filing the appeal. In our view, the same could not furnish sufficient ground in the facts of the presence case. C. Filing of the appeal by the writ petitioner after writ proceedings an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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