M/S Kunal Ett Udyog (A Sole Proprietor Ship Firm) vs. The Union Of INDIA

Held

The Court held that the writ petition was not maintainable due to the existence of an alternative statutory remedy and the significant delay in filing. Citing the judgment in CWJC No. 6180 of 2026 (M.K. Traders Vrs State of Bihar & Ors.), the Court emphasized that when a statutory forum is created for redressal, a writ petition should not be entertained, especially when filed with an unexplained delay. The Court referred to Supreme Court judgments in CIT Vrs Chhabil Dass Agrawal and CCT Vrs Glaxo Smith Kline Consumer Health Care Ltd., which restrain High Courts from entertaining writ applications filed beyond the statutory period of appeal. The Court found that the petitioner, despite receiving reminders, failed to file a reply and instead filed the writ petition after approximately nine months, which is beyond the statutory period for filing an appeal. The Court also noted that while exceptional circumstances like breach of natural justice can allow writ petitions despite alternative remedies, the delay in this case frustrated the legislative intent. Therefore, the writ application was dismissed as not entertainable.

Facts

The petitioner, M/s Kunal ETT Udyog, a sole proprietorship firm engaged in brick manufacturing, filed a writ petition challenging an order dated 07.08.2024 passed under Section 73 of the Bihar Goods and Services Tax Act, 2017, by the Assistant Commissioner of State Tax, Bettiah Circle, for the period 2019-20. The petitioner claimed to have filed all required returns, declaring a turnover of Rs. 87,37,756/-. A show cause notice was issued on 29.05.2024, requiring a reply by 29.06.2024. The petitioner failed to appear due to illness, leading to an ex parte order imposing tax, interest, and penalty totaling Rs. 1,71,960/-, Rs. 1,64,141, and Rs. 1,64,141 respectively. The petitioner contended that the show cause notice was not properly served and that no intimation of discrepancies in Form ASMT-10 was issued. The respondents argued that an alternative remedy of appeal under Section 107 of the BGST Act, 2017, was available and that the writ petition was filed with a significant delay of approximately nine months.

Key Issues

1. Whether the writ petition is maintainable given the existence of an alternative statutory remedy of appeal under Section 107 of the BGST Act, 2017, and the delay in filing the petition? (Section 107, BGST Act, 2017, Article 226 of the Constitution of India) 2. Whether the order passed under Section 73 of the BGST Act, 2017, is vitiated by procedural irregularities, including improper service of the show cause notice and failure to issue Form ASMT-10? Petitioner's Arguments: The petitioner argued that the show cause notice was not served properly via email or postal address. They also contended that the respondent authorities failed to issue Form ASMT-10 to intimate discrepancies in GSTR-2A and GSTR-3B for the period 2019-20. The petitioner also pointed out that two orders were passed for the same period, one on 03.08.2023 and another on 07.08.2024. Revenue's Arguments: The respondent department argued that the petitioner has an alternative remedy of appeal under Section 107 of the BGST Act, 2017, and that the writ petition was filed with a delay of approximately nine months. They submitted that the show cause notice was issued on the common portal and that the petitioner admitted to not filing a reply due to illness. The department also clarified that the case was not one of scrutiny under Section 61, thus not requiring Form ASMT-10, and that the two orders pertained to different issues (suppression of turnover and ineligible ITC).