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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 ..... iod April 2021 to March 2022 under the Central Goods and Service Tax Act 2017 and the State Goods and Service Tax Act 2017, as arbitrary 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 aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court notices that the High Court has relegated the matter to the Assessing Officer who is required to look into the matter afresh. Since the matter is at large, 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 Rs.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. 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned Assessment Order dated 10.11.2022 passed by the 3rd respondent is set aside on the condition of petitioner depositing 50% of tax component of Rs. 23,79,26,090/- as mentioned in the impugned 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition that was directed to be deposited. A perusal of para-11 of the judgment dated 24.03.2023, makes it very clear that the petitioner was directed to deposit 50% of the tax component of Rs. 23,79,26,090/-. In the judgment, specific amount has been 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 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider whether the petitioner is entitled for exclusion of time taken in the writ proceedings from the period of limitation for filing appeal. 21. In M/s. Laxmi Srinivasa R and P Boiled Rice Mill (supra) the Hon'ble Apex Court held as under on the point of entitlement to ask for exclusion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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: 25. It is settled in law that the existence of the statutory alternative remedy of appeal is no bar to entertainment of the writ petition under 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I, p. 1179, note 7) has stated that power under clause (c) of Order 6 Rule 16 of the Code is confined to cases where the abuse of the process of the court is manifest from the pleadings; and that this power is unlike the power under Section 151 whereunder courts have inherent power to strike out pleadings or to stay or dismiss proceedings 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court. Approaching this Court again under Article 226 of the Constitution of India is also abuse of the process of this Court. We would stop such proceedings at this stage and would not encourage such practice. 31. M/s. Mastek Engineering Private Limited (supra) is also of no help to the petitioner and does not apply to the facts of the present case. There was 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 ( ..... 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