Bhaskar Thakur vs. The Union Of INDIA
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The petitioner, Bhaskar Thakur, challenged a demand notice dated 02.03.2020 (Annexure-2) issued by CGST authorities for the period October 2018 to March 2019, and an appellate order dated 20.01.2023 (Annexure-3) rejecting his appeal. The appellate order noted the appeal was filed with a delay of 34 months and lacked a certified copy of the assessment order. The petitioner claimed to be a contractor with agreements predating the CGST Act, 2017, but work performed thereafter, and sought a refund of CGST levied. However, no evidence of pre-01.07.2017 contracts or work performed post-01.07.2017 was produced. The assessment order itself was also not filed.
Held
The Court held that the appeal was rightly dismissed by the appellate authority due to gross delay. The petitioner failed to avail the benefit of the extended limitation period granted by the Supreme Court in Suo Motu Writ Petition (C) No. 3 of 2020, which allowed filing within ninety days from 01.03.2022, meaning an appeal could have been filed by 29.05.2022. The petitioner's appeal was filed on 15.01.2023, significantly beyond this extended deadline. The Court found no reason to invoke its extraordinary jurisdiction under Article 226, particularly as alternate remedies were available and the petitioner had not been diligent in pursuing them within the stipulated timeframes. The petitioner's claim regarding contracts executed prior to the CGST Act was not substantiated with any evidence, and the assessment order was also not produced. The ratio decidendi is that the extraordinary writ jurisdiction will not be exercised where there is a failure to diligently pursue available alternate remedies within prescribed timelines, especially when the delay is substantial and unexcused.
Key Issues
1. Whether the appellate authority erred in dismissing the petitioner's appeal on grounds of gross delay, considering the provisions of Section 107(4) of the Bihar Goods and Services Tax Act, 2017 and the Supreme Court's directions in Suo Motu Writ Petition (C) No. 3 of 2020 regarding extension of limitation due to the pandemic? Petitioner's contention: The petitioner implicitly argued that the delay should have been condoned, especially given the pandemic-related extensions granted by the Supreme Court, and that the appellate order was therefore erroneous. The petitioner also contended that CGST was levied on contracts executed prior to the CGST Act, 2017, with work performed subsequently, implying a grievance regarding the taxability and potential refund. Respondent's contention: The respondents, through the appellate order, argued that the appeal was filed with a gross delay of 34 months. They noted that even with the benefit of the Supreme Court's extension of limitation (saving period from 15.03.2020 to 28.02.2022, with 90 days from 01.03.2022 for filing), the appeal was filed on 15.01.2023, which was more than seven months after the extended deadline of 29.05.2022. The absence of a certified copy of the assessment order was also a ground for dismissal.
Sections Cited
Section 107(4)
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Cause title — parties, addresses and appearances
ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 21-04-2023 The above writ petition challenges the demand raised by the CGST authorities as per Annexure-2 and the appellate order in the appeal filed against the assessment order, which has also been rejected by Annexure-3 order dated 20.01.2023. Annexure-2 is a demand notice dated 02.03.2020, for the period October, 2018 to March, 2019. Obviously, the date of assessment order would be prior, which order has not 2/4 been produced herein. In the appellate order at Annexure-3 it has been noticed that the appeal was filed on 15.01.2023 with a delay of 34 months. It was also observed that there was no certified copy of the order produced. Hence, the appeal stood dismissed for the reason of delay. The appellant in the writ petition has claimed that he is a contractor who had obtained contracts even prior to 01.07.2017, on which date Goods and Services Tax Act, 2017 came into force. The appellant asserts that there was a writ petition filed as CWJC No. 1452 of 2019 in which an order was passed on 05.07.2019; which, however, has not been produced with the writ petition and we did not have the benefit of perusing the said order. The contention raised in the writ petition seems to be the question of refund of CGST which is levied even for contracts, agreements of which were executed prior to the date of coming into force of the CGST Act, but the actual work having been carried out subsequent to the date of CGST Act. The grievance seems to be the awarders’ unwillingness to refund the higher tax leviable under the CGST Act. Despite raising such a contention, there is nothing produced in the writ petition to substantiate the claim of a contract having been executed prior to 01.07.2017 and the work 3/4 carried out after that date. As we noticed, even the assessment order is not produced herein.
The appeal was dismissed for reason of gross delay. Section 107(4) 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. The Appellate Authority also took 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. Hence, an appeal could have been filed on or before 29.05.2022, which provision was not availed by the petitioner herein. The appeal is said to have been filed only on 15.01.2023, after more than seven months from the date on which even the limitation period, as stipulated by the Hon’ble Supreme Court, 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 4/4 been diligent in availing such alternate remedies within the stipulated time. The writ petition hence would stand dismissed.
P.K.P./Anushka (K. Vinod Chandran, CJ) (Madhuresh Prasad, J) AFR/NAFR CAV DATE Uploading Date 27.04.2023 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.