Gulapsa @ Gulapsa Khatun vs. The State Of Bihar
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The petitioner, Gulapsa @ Gulapsa Khatun, filed a writ petition before the Patna High Court challenging a demand notice dated 19.11.2021 issued by the Assistant Commissioner of State Tax, Madhepura. The petitioner had not filed an appeal against this demand notice. The Court noted that Section 107 of the Bihar Goods and Services Tax Act, 2017 (BGST Act) allows for appeals within three months, with a further one-month period for condonation of delay. The Court also considered the Supreme Court's suo motu order extending limitation due to the pandemic, which would have allowed appeals to be filed by 29.05.2022 or with delay by 28.06.2022. Additionally, Notification No. 53 of 2023-Central Tax provided a special procedure for filing delayed appeals against orders passed under Sections 73 and 74 of the BGST Act, requiring filing by 31.01.2024 and payment of 12.5% of the balance tax due. The petitioner availed neither of these remedies.
Held
The Court held that the writ petition is not maintainable. The primary reason for this decision is the availability of alternative statutory remedies under Section 107 of the BGST Act and the subsequent notifications, which the petitioner failed to avail. The Court emphasized that the extraordinary jurisdiction under Article 226 of the Constitution is not to be invoked when such remedies exist and the assessee has not been diligent in pursuing them within the prescribed time limits. The Court cited the principle that 'the law favours the diligent and not the indolent,' and that the delay on the part of the petitioner stands against them. Therefore, the Court found no reason to interfere with the demand notice through writ jurisdiction. The operative direction was to dismiss the writ petition.
Key Issues
1. Whether the petitioner is entitled to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, given the availability of alternative remedies under the BGST Act and the petitioner's failure to avail them within the stipulated time? Petitioner's Contention: The judgment does not record any specific arguments made by the petitioner regarding the invocation of writ jurisdiction. However, the filing of the writ petition itself implies a challenge to the demand notice and a request for relief from the High Court. Respondent's Contention: The respondents, represented by the Standing Counsel, would likely argue that the writ petition is not maintainable because the petitioner has failed to exhaust the statutory alternative remedies available under Section 107 of the BGST Act and the subsequent notifications, and has not been diligent in pursuing them.
Sections Cited
Section 107, Section 73, Section 74
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Cause title — parties, addresses and appearances
ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 05-07-2024 The writ petition is filed against the demand notice dated 19.11.2021, Annexure-1, against which no appeal has been filed.
Section 107 of the Bihar Goods and Services Tax Act, 2017 (for brevity “BGST Act”) 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.
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, Cognizance for Extension of 2/3 Limitation, In Re (2021) 5 SCC 452. 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, and also filed with delay before 28.06.2022, and any appeal filed which is pending before the authority could also be considered as properly filed, even if there is delay in such filing. The said provision was not availed by the petitioner herein.
The Central Board of Indirect Taxes and Customs has by Notification No. 53 of 2023- Central Tax, dated 02.11.2023 (S.O. 4767(E)) extended the time for filing appeal against an order passed by the Proper Officer on or before 31.03.2023 under Sections 73 and 74 of the ‘BGST Act’. This in fact extends the period for filing a delayed appeal beyond the one month period as provided under Section 107(4) of the ‘BGST Act’, on following the special procedure prescribed under the said Notification, provided an appeal was filed before 31.01.2024 and 12.5% of the balance tax due was paid. The petitioner did not avail this remedy also.
The petitioner neither filed an appeal against the impugned assessment order nor availed the benefit of 3/3 Notification No. 53 of 2023- Central Tax, dated 02.11.2023 (S.O. 4767(E)).
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 delay stands against the petitioner.
The writ petition hence would stand dismissed.
sharun/- (K. Vinod Chandran, CJ) ( Partha Sarthy, J) AFR/NAFR CAV DATE Uploading Date 09.07.2024 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.