9911796707
TMI Blog2024 (10) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned orders - petition dismissed. - Hon'ble Piyush Agrawal, J. For the Petitioner : Atharva Dixit, Devansh Misra, Raghuvansh Misra For the Respondent : C.S.C. ORDER HON'BLE PIYUSH AGRAWAL, J. 1. Heard Sri Devansh Mishra, learned counsel for the petitioner and Sri Arvind Mishra, learned Standing Counsel for the State-respondents. 2. By means of present petition, the petitioner is, inter alia, praying for the following relief:- (i). Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 21.05.2024 passed by Additional Commissioner Grade-2 (Appeal)-II, State Goods and Services Tax, Ghaziabad- respondent no.2 and the order dated 22.03.2022 passed by Assistant Commissioner, State Goods and Services Tax, Sector- 8, Ghaziabad- respondent no.3 (Annexure-1 to this writ petition); (ii). Issue a writ, order or direction in the nature of mandamus directing the respondents to restore the GST registration of the Petitioner firm bearing GSTIN No.09AYHPT5589J1ZF; (iii). ......... (iv). .......... 3. Learned counsel for the petitioner submits that petitioner firm is engaged in the business of providing security services to various educational insti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days' time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant Co. Ltd. (1935 AC 532) and Secretary of State v. Mask Co. (AIR 1940 PC 105). It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine. (emphasis supplied) In the subsequent decision in Mafatlal Industries Ltd. Ors. vs. Union of India Ors.12, this Court went on to observe that an Act cannot bar and curtail remedy under Article 226 or 32 of the Constitution. The Court, however, added a word of caution and expounded that the constitutional Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise its jurisdiction consistent with the provisions of the enactment. To put it differently, the fact that the High Court has wide jurisdiction under Article 226 of the Constitution, does not mean that it can disregard the substantive provisions of a statute and pass orders which can be settled only through a mechanism prescribed by the statute. 15. We may now revert to the Full Bench decision of the And ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling the assessment order even if filed beyond the statutory period of maximum 60 days in filing appeal. The remedy of appeal is creature of statute. If the appeal is presented by the assessee beyond the extended statutory limitation period of 60 days in terms of Section 31 of the 2005 Act and is, therefore, not entertained, it is incomprehensible as to how it would become a case of violation of fundamental right, much less statutory or legal right as such. 10. Further, the Supreme Court in State of Haryana Vs. Hindustan Machine Tools Limited [2015 (328) ELT 27 (P H)] has held as under:- 19. The power conferred under Articles 226/227 is designated to effectuate the law, to ensure that rule of law is enforced and the statutory authorities and other organs of the State act in accordance with law. It is not to be invoked whereby authorities are directed to act contrary to law. Wherever, the extent of condonable period is specifically prescribed by a statute, it would not be appropriate even under Articles 226/227 of the Constitution to entertain the writ petition so as to breach the express provision in the statute and act contrary to the mandate of the legislature. It is for the legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation periods, it impliedly excludes the application of general statutes such as the Limitation Act. The rationale underlying this principle is rooted in the notion that the legislature, in enacting a special statute, intends to provide a comprehensive and exhaustive regime governing all aspects of the relevant legal domain. 10. The principle of statutory interpretation embodies a fundamental tenet of legal reasoning: fidelity to legislative intent. In the context of limitation under special statutes, this principle assumes paramount importance, guiding courts in their adjudicative function. While the court retains discretionary authority in certain matters, the primacy accorded to limitation under special statutes operates as a circumscribing principle delineating the boundaries within which judicial discretion may be exercised. 11. The jurisprudential foundation supporting the primacy of limitation under special statutes over general statutes is multifaceted. Firstly, it recognizes the legislature's intent to create a cohesive and self-sufficient legal framework tailored to the specific nuances of the relevant legal domain. By providing detailed provisions governing limita ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
