Nirmal Kumar Agarwal vs. The Union Of INDIA

CWJC/301/2024HC PatnaGSTCNR BRHC01120702202318 January 2024Bench: MR. JUSTICE RAJIV ROY,THE CHIEF JUSTICE-3 pages

AI SummaryDismissed

Facts

The petitioner, Nirmal Kumar Agarwal, is aggrieved by an order dated 27.05.2023, which cancelled their GST registration. The petitioner had an appellate remedy available under Section 107 of the Bihar Goods and Services Tax Act, 2017. However, the appeal was filed on 05.10.2023, significantly beyond the prescribed limitation period. The order impugned in the appeal was dated 27.05.2023, meaning the appeal should have been filed by 26.08.2023, with a further one-month window for delay condonation. The petitioner did not dispute receiving the show-cause notice, which cited non-filing of returns for a continuous period of six months as the reason for cancellation. The petitioner also did not claim to have filed returns during this period.

Held

The Court held that it would not invoke its extraordinary jurisdiction under Article 226 of the Constitution. The reasoning was that an alternative appellate remedy was available to the petitioner under Section 107 of the BGST Act. The Court noted that the petitioner had not been diligent in availing this remedy, having filed the appeal significantly after the expiry of the limitation period. The Court emphasized that the law favors the diligent and not the indolent, and extraordinary jurisdiction is not a substitute for a measure where alternate remedies exist and have not been pursued within the prescribed time. The Court also noted that the petitioner did not dispute receiving the show-cause notice or the fact that returns were not filed for six continuous months. Therefore, the writ petition was dismissed.

Key Issues

1. Whether the High Court should invoke its extraordinary writ jurisdiction under Article 226 of the Constitution of India when an alternative statutory remedy is available to the petitioner and has not been availed diligently within the stipulated time, particularly concerning the cancellation of GST registration. Petitioner's Contention: The petitioner, by filing this writ petition, implicitly seeks the Court's intervention despite the availability of an appeal. The judgment does not explicitly record arguments made by the petitioner regarding the merits of the cancellation or the delay. Revenue's Contention: The respondents, represented by the Union of India, would likely argue that the writ petition is not maintainable due to the availability of an efficacious alternative remedy and the petitioner's failure to pursue it diligently. They would emphasize the statutory timelines for filing appeals and the principle that the law favors the diligent.

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.301 of 2024 ====================================================== Nirmal Kumar Agarwal Through its proprietor Nirmal Kumar Agarwal aged about 38 years, male, son of Vijay Kumar Agarwal resident of ward no 11 Malipur, Malipur P.S- Malipur Begusarai, Bihar- 848204 ... ... Petitioner/s Versus 1. The Union of India through the Commissioner of Central GST, Patna. 2. Superintendent, Central GST, Samastipur, Bihar 3. Joint Commissioner CGST and CX(Appeals), Patna ... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mrs. Archana Sinha, Advocate For the U.O.I. : Dr. K.N. Singh, ASG Mr. Anshuman Singh, Sr. SC, CGST & CX Mr. Devansh Shankar Singh, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE RAJIV ROY

ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 18-01-2024 The petitioner is aggrieved with the cancellation of registration by Annexure-1 order passed on 27.05.2023. 2. Admittedly, there is an appellate remedy which the petitioner availed with delay.

2/3

Section 107 of the Bihar Goods and Services Tax 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. Here, the order impugned in the appeal was dated 27.05.2023. An appeal was to be filed on or before 26.08.2023 and if necessary with a delay condonation application within one month thereafter. The appeal is said to have been filed only on 05.10.2023, after the 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.

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 any case that he had in fact filed a return in the continuous period of six months.

3/3

The writ petition would stand dismissed.

Sujit/- (K. Vinod Chandran, CJ) ( Rajiv Roy, J) AFR/NAFR NAFR CAV DATE Uploading Date 19.01.2024 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.