M/S Prashant Kumar vs. The State Of Bihar
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The petitioner, M/s Prashant Kumar, is challenging the dismissal of their appeal by the Additional Commissioner (Appeal) State Taxes, Purnia Circle. The assessment order was passed on December 28, 2021. The petitioner filed an appeal on September 1, 2022, which was dismissed on September 24, 2022, due to being filed beyond the prescribed time limit under Section 107(4) of the Bihar Goods and Services Tax Act, 2017, even with the benefit of delay condonation. The petitioner argued that the assessment order violated principles of natural justice by offering only one opportunity for objection and hearing, and this ground was not considered by the appellate authority due to the delay. The appeal was delayed by approximately six months.
Held
The Court held that it would not invoke its extraordinary jurisdiction under Article 226 to entertain the writ petition. The primary reason was that the appeal was dismissed for being filed beyond the statutory limitation period, and the petitioner had not demonstrated diligence in availing the alternate remedies within the stipulated time. The Court found no reason to interfere, especially as the dismissal on delay was considered unassailable due to the rigor of the statutory provision. The Court distinguished the cited precedents, noting that the Madras High Court orders were either unopposed or involved rectifiable errors in dates, and the Orissa High Court judgment was not binding and was respectfully disagreed with in the context of dismissal on delay. The Court also considered the Supreme Court's Suo Motu order extending limitation due to the pandemic, noting that the petitioner had not availed the extended period even within the stipulated timelines. The Court emphasized that a second appeal on merits to the Tribunal would not be possible if the first appeal was dismissed on grounds of delay. Therefore, the writ petition was dismissed.
Key Issues
1. Whether the High Court, in its writ jurisdiction under Article 226, should entertain a writ petition challenging the dismissal of an appeal for being filed beyond the statutory limitation period, especially when the petitioner has not been diligent in availing alternate remedies. Petitioner's Arguments: - The petitioner contended that the assessment order itself violated principles of natural justice by providing only one opportunity for objection and hearing. - They argued that this ground of natural justice violation was raised before the first appellate authority but was not considered due to the dismissal on grounds of delay. - The petitioner relied on various High Court decisions, including M/s PRM Constructions Vs. The Assistant Commissioner of GST & Central Excise & Ors. (Madras High Court) and EPMS Property Services Private Limited Vs. The State Tax Officer & Anr. (Madras High Court), to support the contention that appeals could be allowed even beyond the statutory limitation period. - They also referred to a Division Bench judgment of the High Court of Orissa in M/s. Laxman Barik Vs. Joint Commissioner of State Tax (Appeal) Balasore and Ors., where the appeal was dismissed for delay, but recovery was stayed pending the constitution of the GST Tribunal. Respondent's Arguments: - The respondent (State) did not explicitly record arguments in the judgment regarding the delay condonation or the merits of the case, but their counsel appeared and argued the case.
Sections Cited
Section 107(4)
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Cause title — parties, addresses and appearances
ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 27-06-2023 The petitioner is concerned with the dismissal of an appeal as per Annexure-2, which was for the reason of the appeal being delayed beyond the time provided under Section 107 (4) of the Bihar Goods and Services Tax Act,2017 (in brevity ‘BGST Act’). We have to first notice the facts or rather the dates on which the various orders were passed. The assessment order was passed on 28.12.2021, the appeal was filed on 01.09.2022. The appeal stood dismissed by Annexure-2 dated 24.09.2022, on the ground that the appeal is filed beyond the period provided for filing it even with a delay condonation application i.e., four months from the date of the order.
The learned counsel appearing for the petitioner 2/5 submits that even at the time of the assessment order, there was violation of principles of natural justice insofar as the assessee being offered only one opportunity to file objection and appear for hearing. It is also submitted that such a ground was taken before the first Appellate Authority, which was not considered only by reason of delay. The learned counsel also places before us various decisions of the various High Courts to contend that even when delay is caused beyond the period that is provided under the statute, there should be a permission granted to file an appeal.
We see that at least two of the orders produced before us are of learned single Judges and even the Division Bench orders of the other High Courts have only a persuasive effect on us and it cannot be considered to be a binding precedent. We, all the same, looked at the various orders on the persuasion of the learned counsel. In one of those, in W.P. No. 14111 of 2023, titled as M/s PRM Constructions Vs. The Assistant Commissioner of GST & Central Excise & Ors., dated 01.06.2023, a learned Single Judge of the Madras High Court had allowed the filing of the statutory appeal under the Finance Act, 1994, even beyond the period of statutory limitation. Therein, the learned Senior Panel Counsel appearing 3/5 for the Department did not object to the request. It was hence, the said order was passed by the learned Single Judge. The very same learned Single Judge’s judgment in connected writ & Anr., dated 05.04.2023, was also produced before us. Therein, obviously there was an error with respect to the date of receipt of order, which was pointed out to the learned Single Judge. If the error was rectified the appeals were found to have been filed within the time provided under the statute i.e. within four months. The said decision is not applicable to the present case since, obviously, herein, the appeal has been filed delayed.
A Division Bench Judgment of the High Court of Orissa at Cuttack in W.P(C) No. 10587 of 2023, titled as M/s. directed that recovery should be stayed on payment of 20% and the petitioner permitted to avail the remedy before the GST Tribunal.
4/5
With all the respect at our command, we are unable to agree with the said Division Bench judgment especially, in the context of the appeal having been dismissed on delay. When there is dismissal on delay there could be no consideration on merits by the second Appellate Authority. We have also been dismissing such writ petitions, where there was delayed filing of appeals, without permitting them to wait for the constitution of the GST Tribunal. A second appeal on merits to the Tribunal would not be possible since the first appeal was dismissed on grounds of delay; which dismissal is unassailable by the rigour of the statutory provision.
In the present case, we see that the appeal was filed delayed by around six months. 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 Hon’ble Supreme Court also declared that if a longer period 5/5 than 90 days is provided in a Statute, then that longer period will apply. In the BGST Act, u/s 107(4) there is a provision for condonation of delay, if the appeal is filed delayed, within one month of expiry of limitation. Even if that be deemed to be applicable then the appeal ought to have been filed by 28.06.2022. The appeal is filed only on 01.09.2022 after 65 days 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 been diligent in availing such alternate remedies within the stipulated time.
The writ petition hence would stand dismissed.
Prakash/Avinash (K. Vinod Chandran, CJ) (Partha Sarthy, J) AFR/NAFR CAV DATE N/A Uploading Date Transmission Date N/A
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.