M/S Amar Enterprises (A Sole Proprietor Ship Firm) vs. The Union Of INDIA

The petitioner has filed the present writ application challenging order dated 31.08.2024, passed under Section 73(9) of the BGST Act 2017, by respondent no. 6 i.e., Assistant Commissioner of State Tax, Patna North Circle, Patna, Bihar and 2/5 consequential demand notice issued in Form DRC-07 dated 31.08.2024 on the ground that no opportunity of personal hearing was provided to it while passing the impugned order and the authority has not recorded any findings to the reply filed by it to the show cause notice.

Petitioner is a work contractor working in different government department and private sector. For period 2019-20, it has filed GSTR-1 and for month of May 2019, petitioner’s accountant made double entry in filing GST return by reason of which tax amount get enhanced and the annual return was correctly filed on 30.6.2023 in the same manner as mentioned in their monthly return. On 12.2.2021 on detection of mismatch between payment of output tax in GSTR-1 and GSTR-3B, a show cause notice was issued in Form DRC-01 to the petitioner and was asked to submit its reply by 05.3.2021. 4. Learned counsel for the petitioner submits that it has submitted its reply on the common portal on 14.3.2021. The petitioner further submits that without considering the reply to show cause notice, the respondent no. 6 passed the impugned order on 31.8.2024 and imposed tax, interest and penalty of an amount of Rs. 10,77,642/ and subsequently issue demand order by DRC-07 dated 31.08.2024, for recovery of tax against the petitioner.

The matter is contested by learned counsel for the State Mr. Ravish Chandra. He raises preliminary objection to the 3/5 extent that against order dated 31.8.2024, an alternative efficacious remedy is available to the petitioner under Section 107 of the BGST Act 2017 which he has not availed.

It is further contended that the present writ application against the impugned order has been filed by the petitioner on 06.8.2025 i.e., almost after 10 months after the cause of action arose and the remedy of statutory appeal stands foreclosed due to limitation. Even the rectification application preferred by him was beyond the prescribed period under Section 37(3), proviso of the BGST Act, 2017. 7. Heard the parties, and on appreciation of respective submissions, we are of considered opinion that the present case is covered by Judgment dated 14.07.2026 passed by this Court in CWJC No. 6180 of 2026 (M.K Traders Vrs. State of Bihar & Ors.). The relevant part of paragraph 9 and 9.2 are reproduced here-in- below- “9. To start with issue no. (i)- the petitioner aggrieved by order dated 07.02.2023, passed by respondent no. 3 under Section 73(9) of the BGST Act 2017 (Annexure P/3 of the writ application) has filed belated appeal on 02.04.2024 under Section 107 of BGST Act 2017, which was rejected by the learned Appellate Authority on the ground of its competence to condone the delay beyond 30 days. The petitioner instead of filing appeal before learned GST Tribunal under Section 112 of BGST Act 2017, on the ground of its non availability has filed the present writ 4/5 application on 24.03.2026 i.e., almost after a delay of three years. The Hon’ble Supreme Court in the matter of CIT Vrs Chhabil Dass Agrawal reported in (2014)ISCC 603 has held that when a statutory forum is created by law for redressal of grievance, writ petition should not be entertained ignoring said statutory dispensation. Even if contention of petitioner as regard belated communication of order and available alternative remedy being non available are accepted then also in the circumstances of delayed filing of writ application for more than 3 years, the present writ application is not entertainable under Article 226 of Constitution of India. The Hon’ble Supreme Court vide judgment dated 06.05.2022 in the matter of CCT Vrs Glaxo Smith Kline Consumer Health Care Ltd. [reported in (2020)19 SCC 681] in specific terms has restrained the High Court from entertaining writ application filed beyond the statutory period of appeal.” “9.2 In our opinion, entertainment of writ application filed almost after 3 years of unexplained delay will frustrate very legislative intent and will render the legislative scheme otiose. Further adhering to recent Judgment dated 03.06.2021, passed by the Hon’ble Supreme Court in matter of the ACST Vrs. M/s Commercial Steel Ltd., reported in (2022) 16 SCC 447, to the extent that existence of an alternative remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of Constitution in exceptional circumstances of breach of fundamental right, violation of principles of natural justice, an 5/5 excess of juri iction, a challenge to the vires of the statutes or delegated legislation, we are of the view that the present writ application filed beyond the statutory period of filing appeal may not be entertained in any case by the High Court in exercise of power under Article 226 of Constitution of India.”

In present case, the petitioner in its indolent approach has filed its rectification application much after the prescribed period under Section 37(3), proviso. Even after rejection of the rectification application has not availed the statutory remedy of appeal instead has filed the present writ application with delay and passage of statutory time limit for filing of appeal under Section 107 of the BGST Act, 2017. Accordingly, present writ application filed almost after a delay of 10 months from the date of passing of impugned order in terms of detailed Judgment dated 14.07.2026 passed by this Court in CWJC No. 6180 of 2026 (M.K. Traders Vrs. State of Bihar & Ors.) is not entertainable and is dismissed. Amit/- (Anil Kumar Sinha, J) ( Vikash Kumar, J) U