Shiv Kumar, Through Its Proprietor Shiv Kumar vs. The State Of Bihar
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The petitioner, Shiv Kumar, challenged the cancellation of his GST registration dated May 29, 2020, which was preceded by a show-cause notice dated December 6, 2019, to which he replied on December 15, 2019. The petitioner did not avail the statutory appeal remedy provided under Section 107 of the Bihar Goods and Services Tax Act, 2017, which allowed for appeals within three months and condonation of delay for a further month. The Supreme Court's directions regarding extension of limitation due to the pandemic meant an appeal could have been filed by May 30, 2022, or even June 30, 2022, if a longer period applied. Furthermore, the petitioner did not avail of the Amnesty Scheme introduced by Circular No. 3 of 2023, which permitted restoration of registration for cancelled dealers upon payment of dues between March 31, 2023, and August 31, 2023. The petitioner's claim that he came to know of the cancellation late was not substantiated in the writ petition.
Held
The Court held that the petitioner had failed to avail the statutory appellate remedy under Section 107 of the BGST Act, 2017, despite ample opportunity, including extensions of limitation due to the pandemic, which would have allowed an appeal to be filed by May 30, 2022, or June 30, 2022. The Court also noted that the petitioner did not avail the Amnesty Scheme offered by Circular No. 3 of 2023. The petitioner's claim of late knowledge of the cancellation was not substantiated. The Court emphasized that the law favors the diligent, and the petitioner's delay was against him. Consequently, the Court declined to exercise its writ jurisdiction, dismissing the petition. The ratio decidendi is that a writ petition will not be entertained when statutory remedies have not been availed within the prescribed time limits, especially when the petitioner has not demonstrated diligence or provided substantiation for their claims of delayed knowledge.
Key Issues
1. Whether the petitioner is entitled to challenge the cancellation of his GST registration by way of a writ petition when he has failed to avail the statutory appellate remedy under Section 107 of the BGST Act, 2017, and the prescribed limitation periods, including those extended due to the pandemic, have expired? 2. Whether the petitioner can seek restoration of his GST registration by circumventing the Amnesty Scheme introduced by Circular No. 3 of 2023, which provided a specific window for such restoration? Petitioner's Arguments: The petitioner contended that he did not file an appeal or avail the Amnesty Scheme because he came to know of the cancellation order very late. However, this contention was not substantiated in the writ petition, nor was the date of knowledge specified with proof. Revenue's Arguments: The respondents, represented by the Government Pleader, implicitly argued that the petitioner had failed to avail the available statutory remedies (appeal and Amnesty Scheme) within the prescribed time limits, and therefore, the writ petition should be dismissed. The judgment notes that the petitioner has not produced the show-cause notice before the Court and has no case that it was not received.
Sections Cited
Section 107
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Cause title — parties, addresses and appearances
ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 23-08-2024 The petitioner is before this Court challenging the cancellation of registration dated 29.05.2020 at Annexure-P/2, before which show-cause notice was issued dated 06.12.2019, which was replied to on 15.12.2019. An appeal is provided from Annexure-P/2, which was also not availed of.
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. The Hon’ble Supreme Court, in Suo Motu Writ Petition (C) No. 3 of 2020, In Re: Cognizance For Extension of Limitation, due to the pandemic situation, saved limitation between 15.03.2020 2/3 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 30.05.2022, which provision was not availed by the petitioner herein. The Hon’ble Supreme Court also declared that if a longer period than 90 days is provided in a Statute, then that longer period will apply. Hence, a delayed appeal could also have been on or before 30.06.2022. 3. The petitioner has not availed such remedy and at this point of time, cannot seek to avail the appellate remedy for reason of the limitation period having expired long prior.
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 31.08.2023. The petitioner did not avail of such remedy also.
The petitioner was not a registered dealer after cancellation and there was no monitoring of his activities by the Department in the intervening period. There is no way to ascertain as to whether there was any transaction carried out during the said period. There is also the fact that the petitioner has not availed of the appellate remedy nor the Amnesty 3/3 Scheme which was made applicable. The petitioner does not have any case that the show-cause notice was not received by him. The petitioner also has not produced the show-cause notice before this Court.
Learned Counsel for the petitioner submits that no appeal was filed and benefit under the circular was not availed because the petitioner came to know of the cancellation very late, however, there is no such contention taken in the writ petition nor is the date on which he came to know of the cancellation order specified with substantiation.
The law favours the diligent and not the indolent. The delay stands against the petitioner.
Hence, we dismiss the writ petition; declining exercise of discretion.
Harsh/- (K. Vinod Chandran, CJ) ( Partha Sarthy, J) AFR/NAFR NAFR CAV DATE N.A Uploading Date 27.08.2024 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.