Ramesh Radav vs. The Union Of INDIA
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The petitioner, Ramesh Yadav, through his proprietorship, is aggrieved by an order dated January 20, 2021, cancelling his GST registration. The petitioner's primary contention is that the show-cause notice for cancellation, dated January 6, 2021, directed appearance on January 4, 2021, which is a date prior to the notice itself. The petitioner availed the appellate remedy with significant delay. The order impugned in the appeal was dated January 20, 2021. The Supreme Court's extension of limitation due to the pandemic allowed filing of appeals within ninety days from March 1, 2022, meaning the appeal should have been filed by June 30, 2022, with a further month for delay condonation. However, the appeal was filed on October 29, 2023, over a year after the extended limitation expired. The petitioner did not file a reply to the show-cause notice, nor did he dispute receiving it. The reason for cancellation was non-filing of returns for six continuous months, which the petitioner did not contest.
Held
The Court held that it would not invoke its extraordinary jurisdiction under Article 226 of the Constitution of India. The primary reason for this decision was the petitioner's lack of diligence in availing the alternative appellate remedy. The Court noted that while there was an apparent illegality in the show-cause notice, the petitioner failed to respond to it or seek further time. Furthermore, the petitioner did not dispute the factual basis for the cancellation, which was the non-filing of returns for six continuous months. The Court emphasized that the law favors diligent litigants and not those who are indolent. The Court also considered the extended limitation period granted by the Supreme Court due to the pandemic, finding that the petitioner still failed to file the appeal within the permissible timeframe. Therefore, the writ petition was dismissed. The ratio decidendi is that extraordinary writ jurisdiction is not a substitute for diligent prosecution of alternative remedies, especially when the petitioner has not demonstrated diligence or a compelling reason to bypass the statutory mechanism.
Key Issues
1. Whether the High Court should invoke its extraordinary writ jurisdiction under Article 226 of the Constitution of India, despite the availability of an alternative appellate remedy, when the petitioner has not been diligent in availing such remedy within the stipulated time? Petitioner's contention: The petitioner argued that the show-cause notice for cancellation of registration was procedurally flawed as it directed appearance on a date prior to the notice itself, rendering the subsequent order of cancellation illegal. Revenue's contention: The revenue contended that the petitioner had an alternative appellate remedy under Section 107 of the Bihar Goods and Services Tax Act, 2017, which he failed to avail diligently. They also highlighted that the petitioner did not file a reply to the show-cause notice and did not dispute non-filing of returns for six continuous months, which was the basis for cancellation. The revenue relied on the principle that the law favors the diligent.
Sections Cited
Section 107, Section 73
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 11-01-2024 The petitioner is aggrieved with the cancellation of registration by Annexure-P/1 order passed on 20.01.2021. The vehement contention of the learned counsel for the petitioner is that the show-cause notice for cancellation of registration dated 06.01.2021 directed appearance on 04.01.2021 and the order of cancellation of registration was passed on 20.01.2021. 2. Admittedly, there is an appellate remedy which the petitioner availed with gross delay.
Section 107 of the Bihar Goods and Services Tax Act, 2017 (“BGST Act” hereafter) permits an appeal to be filed 2/3 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. Here, the order impugned in the appeal was dated 20.01.2021. An appeal was to be filed on or before 30.06.2022 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 29.10.2023, after about one year and three 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.
True, there is an illegality in so far as the notice 3/3 issued having shown a date prior to the date of the notice for hearing. However, the reply was directed to be submitted within seven days. The petitioner could have responded to the notice and asked for a further date which was not done by the petitioner. 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 petitioner also did not file a reply to the show-cause notice.
The writ petition would stand dismissed.
Anushka/- (K. Vinod Chandran, CJ) ( Rajiv Roy, J) AFR/NAFR CAV DATE Uploading Date 15.01.2024 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.