M/S Rajesh Kumar Dubey vs. The Union Of INDIA

CWJC/5113/2024HC PatnaGSTCNR BRHC01025441202423 April 2024Bench: MR. JUSTICE HARISH KUMAR,THE CHIEF JUSTICE-3 pages

AI SummaryDismissed

Facts

The petitioner, M/s Rajesh Kumar Dubey, filed a writ petition challenging the appellate order dated 09.01.2024, which rejected their appeal on grounds of delay. The appeal was filed against an order dated 16.08.2019, cancelling the petitioner's GST registration. The petitioner availed the appellate remedy with significant delay. The order of cancellation was dated 16.08.2019. The petitioner did not avail the Amnesty Scheme by Circular No. 3 of 2023, which allowed restoration of cancelled registrations. The petitioner did not dispute receiving the show-cause notice for cancellation, which cited non-filing of returns for six continuous months.

Held

The Court held that it would not invoke its extraordinary jurisdiction under Article 226 of the Constitution. The reasoning was that this jurisdiction is not meant to be employed when alternate remedies are available and the assessee has not been diligent in availing them within the stipulated time. The Court noted that the appeal was filed significantly beyond the extended limitation period, even after considering the Supreme Court's directions in Suo Motu Writ Petition (C) No. 3 of 2020. The Court also observed that the petitioner did not avail the Amnesty Scheme offered by Circular No. 3 of 2023, which provided an opportunity to restore cancelled registrations. Furthermore, the petitioner did not dispute receiving the show-cause notice for cancellation of registration due to non-filing of returns for six continuous months. The Court emphasized that the law favors the diligent and not the indolent. Consequently, the writ petition was dismissed.

Key Issues

1. Whether the High Court should exercise its extraordinary jurisdiction under Article 226 to entertain a writ petition when the petitioner has failed to avail alternate remedies diligently within the stipulated time, particularly concerning the delay in filing an appeal against the cancellation of GST registration? 2. Whether the petitioner's failure to avail the Amnesty Scheme, introduced by Circular No. 3 of 2023 for restoration of cancelled registrations, impacts the consideration of their writ petition? Petitioner's Arguments: The petitioner implicitly argues for the invocation of the High Court's extraordinary jurisdiction due to the rejection of their appeal on delay grounds. They likely contend that the delay should have been condoned, possibly considering the pandemic-related extensions. The petitioner's failure to avail the Amnesty Scheme is not explicitly addressed as an argument in their favor but is noted by the Court. Revenue's Arguments: The respondents, represented by the Union of India and other CGST authorities, likely argued that the petitioner was not diligent in pursuing their remedies and that the delay in filing the appeal was substantial and unexplained. They would have relied on the provisions of Section 107 of the BGST Act and the Supreme Court's directions regarding the extension of limitation due to the pandemic.

Sections Cited

Section 107

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.5113 of 2024 ====================================================== M/s Rajesh Kumar Dubey through proprietor Rajesh Kumar Dubey, Male, aged about 43 years, Son of M.N. Dubey, resident of Magistrate Colony, Road No.- 3, Ashiana Nagar, District- Patna, Bihar. ... ... Petitioner/s Versus 1. The Union of India through the Commissioner of Central Tax, Bihar, GST Bhawan, Beerchand Patel Path, Patna. 2. The Commissioner of Central Tax, Bihar, GST Bhawan, Beerchand Patel Path, Patna. 3. The Superintendent, CGST, Patna Central, Karpoori Sadan, Patna. 4. The Additional Commissioner of CGST and CX (Appeal), Central Revenue Building (Annexe), Second Floor, Birchand Patel Path, Patna. ... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : Ms. Archana Sinha @ Archana Shahi, Advocate For the Respondent/s : Dr. K. N. Singh, ASG Mr. Anshuman Singh, Sr. SC, CGST & CX Mr. Alok Kumar, Advocate Mr. Dewansh Singh, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE HARISH KUMAR

ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 23-04-2024 The writ petition is filed against the appellate order dated 09.01.2024 (Annexure-5) which was rejected on the ground of delay. The appeal was filed against Annexure-2, order of cancellation of registration dated 16.08.2019. 2. Admittedly, the appellate remedy was availed with gross delay.

Section 107 of the Bihar Goods and Services Tax 2/3 Act, 2017 (“BGST Act” hereafter) permits an appeal to be filed within three months and also apply for delay condonation with satisfactory reasons within a further period of one month. We have to take into account the saving of limitation granted by the Hon’ble Supreme Court in Suo Motu Writ Petition (C) No. 3 of 2020, In Re: Cognizance For Extension of Limitation, therein, due to the pandemic situation limitation was saved between 15.03.2020 till 28.02.2022. It was also directed that an appeal could be filed within ninety days from 01.03.2022. 4. Here, the order impugned in the appeal was dated 16.08.2019. An appeal was to be filed on or before 30.05.2022, as permitted by the Hon’ble Supreme Court and if necessary with a delay condonation application within one month thereafter. The appeal is said to have been filed only on 25.11.2023, after about one year five months from the date on which even the extended limitation period expired.

In the above circumstances, we find no reason to invoke the extraordinary juri iction under Article 226, especially since it is not a measure to be employed where there are alternate remedies available and the assessee has not been diligent in availing such alternate remedies within the stipulated time. The law favours the diligent and not the indolent.

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Further, the Government had come out with an Amnesty Scheme by Circular No. 3 of 2023, by which the registered dealers, whose registrations were cancelled were permitted to restore their registration on payment of all dues between 31.03.2023 to 30.06.2023. The petitioner did not avail of such remedy also.

The petitioner does not have any case that the show-cause notice was not received by him. Further, it is also pertinent that the reason stated in the show-cause notice for cancellation of registration is that the petitioner has not filed returns for a continuous period of six months. The petitioner does not have a case that he had in fact filed a return in the continuous period of six months.

The writ petition would stand dismissed.

Anjani/- (K. Vinod Chandran, CJ) ( Harish Kumar, J) AFR/NAFR CAV DATE Uploading Date 24.04.2024 Transmission Date

Reproduced from the public record of the Patna High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.