Sunil Kumar vs. The Union Of INDIA
Original PDF →Facts
The petitioner, Sunil Kumar, is challenging the cancellation of his GST registration, an order passed on April 12, 2021, by the Deputy/Assistant Commissioner, CGST and CX, Purnea Division. The petitioner had an appellate remedy under Section 107 of the Bihar Goods and Services Tax Act, 2017, which allows filing an appeal within three months and seeking delay condonation within a further month. The Supreme Court's suo motu order in Re: Cognizance For Extension of Limitation provided a saving of limitation period from March 15, 2020, to February 28, 2022, and allowed filing appeals within ninety days from March 1, 2022. Despite these extensions, the petitioner filed his appeal on November 16, 2023, approximately one year and five months after the extended limitation period expired. The petitioner also 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 primary reason for this decision was the availability of an alternate statutory remedy, which the petitioner failed to avail diligently within the stipulated time. The Court noted that the petitioner had an appellate remedy under Section 107 of the BGST Act. While acknowledging the Supreme Court's extension of limitation periods due to the pandemic (March 15, 2020, to February 28, 2022, with a further ninety days from March 1, 2022), the petitioner filed the appeal on November 16, 2023, long after the extended deadline. The Court found no reason to interfere when the petitioner had not been diligent in pursuing the available remedy. Furthermore, the petitioner did not dispute receiving the show-cause notice for cancellation, which was based on non-filing of returns for six continuous months, nor did the petitioner claim to have filed returns during that period. The ratio decidendi is that the writ jurisdiction is not a substitute for availing statutory remedies diligently, and the law favors diligent individuals.
Key Issues
1. Whether the High Court should exercise its extraordinary jurisdiction under Article 226 of the Constitution of India to entertain a writ petition challenging the cancellation of GST registration when an alternate statutory remedy of appeal was available and was not availed diligently within the prescribed time, including the extended periods granted by the Supreme Court due to the pandemic? Petitioner's Argument: The petitioner implicitly sought relief under Article 226 by filing the writ petition, implying a grievance with the cancellation order and the subsequent handling of his appeal. However, the judgment does not record specific arguments made by the petitioner regarding the invocation of writ jurisdiction. Respondent's Argument: The respondents, represented by the Additional Solicitor General, 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 within the statutory and extended time limits. They would emphasize that the law favors diligent litigants and that the petitioner's delay in filing the appeal is unconscionable.
Sections Cited
Section 107
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 10-01-2024 The petitioner is aggrieved with the cancellation of registration by Annexure-2(B) order passed on 12.04.2021. 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 within three months and also apply for delay condonation with 2/3 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 12.04.2021. 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 16.11.2023, 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.
The petitioner does not have any case that the show-cause notice was not received by him. Further, it is also 3/3 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.
Anushka/- (K. Vinod Chandran, CJ) ( Rajiv Roy, J) AFR/NAFR CAV DATE Uploading Date 24.01.2024 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.