M/S Astha Enterprises vs. The State Of Bihar

In present writ application, the petitioner has prayed for quashing of order dated 25.02.2022 passed by respondent no. 3, whereby respondent no. 3 for period August 2019 has imposed a liability of Rs. 2,51,779.00/- against tax, interest and penalty.

Learned counsel for the petitioner submits that petitioner is a dealer, having GSTIN No. 10APRPK2691B1Z5 2/7 and is doing business of sale of computer and its accessories and has received a phone call on 10.02.2026, from the office of the respondent department, informing him to deposit the assessed tax for period 2019-20. 4. Learned counsel for the petitioner submits that for period 2019, at no point of time has he received any show cause notice or final order from the respondent authorities but when he contacted his C.A., he came to know that respondent no. 3 has passed an assessment order for the month of August 2019 on 25.02.2022 and created a demand of Rs. 2,51,779/- and submits that show cause notice was never received by the petitioner on his E-mail or his registered place of business through post. The assessment order is illegal and fit to be set aside.

Per contra, Sri Pradeep Kumar, learned AC to GA 11 submits that show cause notice dated 29.12.2021 issued by respondent no. 3 under Section 73 of the CGST/BGST Act, 2017 to the extent of availment of ITC for Rs. 1,54,476.73/- has been issued on the GST portal which is mandated by Section 169 of the CGST/BGST Act, 2017 read with Rule 142 of the CGST/BGST Rules, 2017. Under the GST system of taxation, manual service of notice finds no place.

Learned counsel for the State submits that since the 3/7 ITC pertaining to the purchase of motor vehicle was blocked for the petitioner in terms of section 17(5)(a) of the Act, he was required to reverse it from the credit ledger. Despite intimation from the assessing authority, the petitioner did not reverse it. So, the order dated 25.02.2022 is legal.

Learned counsel for the respondent department, referring to paragraph 11 of the supplementary counter-affidavit filed pursuant to order dated 29.07.2026, submits that the show cause notices and the adjudication orders were served upon the petitioner through multiple statutory modes prescribed under Section 169 of the CGST Act, 2017 namely: (i) uploading on the common GST portal; (ii) system-generated E-mail to the registered E-mail address; and (iii) system-generated SMS on the registered mobile number.

From bare perusals of the referred communications, it is apparent that the petitioner was served with the notice in DRC-01 on E-mail id- deepak_pat123@rediffmail.com on 29.12.2021 at 12:38:57. Further in DRC-01, notice was also sent through SMS on mobile no. 9334143215 on 29.12.2021 at 12:38:57, asking him to furnish reply on or before 29.01.2022. Further 4/7 with respect to the adjudication order, it was served on E-mail Id of the petitioner on 28.02.2022 at 17:51:47 and by SMS it was sent on Mobile No. 9334143215 on 28.02.2022 at 17:51:47. 9. Learned counsel for the respondent department further submits that the show cause notice as well as the adjudication order was served by the valid mode of service to the petitioner and it has a remedy of appeal under Section 107 of the BGST Act, 2017, which it has not availed and instead has filed the present writ application after an inordinate delay of four years and one month and on this sole ground, the writ application is fit to be rejected.

Heard the parties and on appreciation of the respective submission, we are of the considered opinion that the present case is covered by Judgment dated 14.07.2026 passed by this Court in C.W.J.C. No. 6180 of 2026 (M.K. Traders Vrs. State of Bihar & Ors.) The relevant paragraph 9 is reproduced hereinbelow-

To start with issue no. (i)- the petitioner aggrieved by order dated 07.02.2023, passed by respondent no. 3 under Section 73(9) of the BGST Act 2017 (Annexure P/3 of the writ application) has filed belated appeal on 02.04.2024 under Section 107 of BGST Act 2017, which was rejected by the learned Appellate Authority on the ground of its competence to condone the delay beyond 30 days. The petitioner instead of filing appeal before learned GST Tribunal under Section 112 of BGST Act 2017, on the ground of 5/7 its non availability has filed the present writ application on 24.03.2026 i.e., almost after a delay of three years. The Hon’ble Supreme Court in the matter of CIT Vrs Chhabil Dass Agrawal reported in (2014)ISCC 603 has held that when a statutory forum is created by law for redressal of grievance, writ petition should not be entertained ignoring said statutory dispensation. Even if contention of petitioner as regard belated communication of order and available alternative remedy being non available are accepted then also in the circumstances of delayed filing of writ application for more than 3 years, the present writ application is not entertainable under Article 226 of Constitution of India. The Hon’ble Supreme Court vide judgment dated 06.05.2022 in the matter of CCT Vrs Glaxo Smith Kline Consumer Health Care Ltd. [reported in (2020)19 SCC 681] in specific terms has restrained the High Court from entertaining writ application filed beyond the statutory period of appeal.

In present case, the petitioner contending belated communication of order has filed the present writ application after unexplained delay of 3 years. It is imperative to mention here that the legislature in its wi om has mandated the time bound compliances of its provisions. As per provision of Section 37 of BGST Act 2017, read with Rule 59 of BGST Rules 2017 mandates furnishing details of outward supplies in Form GSTR-l effected during a tax period on or before the 10th day of the month succeeding the said tax period. The details of outward supplies furnished by the registered person under Section 37(1) is made available electronically to the recipients of such supplies in FORM GSTR-2A, as per Section 38 read with Rule 60 of the BGST Rules 2017. Further as per section 39 of BGST Act 2017 read with Rule 61 of the BGST Rules 2017 mandates filing of Returns in FORM GSTR-3B, on or before the 20th day of the month succeeding such month. As per Rule 59 (2) of BGST Rules 2017, the details furnished in GSTR-1 may be amended in FORM GSTR-1A before filing of Return GSTR-3B. As per Section 44 of the BGST Act 2017, read with Rule 80 of the BGST Rules 2017, the registered person is required to furnish an annual return 6/7 with audited financial statement in FORM GSTR-9 on or before the 31st day December following the end of such financial year. It may be mentioned here that the registered person is allowed to rectify the omission or incorrect particulars furnished in FORM GSTR-3B before 30th November following the end of the financial year to which such details pertain. As per, provisions of Section 16(4) of the BGST Act 2017, a registered person is entitled to take Input Tax Credit upto 30th day of November following the end of financial years or furnishing of annual return whichever is earlier. The proper officer has to pass order, determining tax under Section 73(9) within 3 years and 5 years as per Section 74(10) of the BGST Act 2017, from the due date for furnishing of annual return for the financial year. It is this order passed under Section 73 or 74 is made appellable under Section 107 of the BGST Act 2017, and requires its filing within 3 months from the date of communication. The legislature in its wi om by provision of Section 107(4) of the BGST Act 2017 has empowered the Appellate Authority to condone the delay of further one month in filing of appeal and Section 107(13) mandates him to decide the appeal within a period of one year from the date of its filing.

In our opinion, entertainment of writ application filed almost after 3 years of unexplained delay will frustrate very legislative intent and will render the legislative scheme otiose. Further adhering to recent Judgment dated 03.06.2021, passed by the Hon’ble Supreme Court in matter of the ACST Vrs. M/s Commercial Steel Ltd., reported in (2022) 16 SCC 447, to the extent that existence of an alternative remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of Constitution in exceptional circumstances of breach of fundamental right, violation of principles of natural justice, an excess of juri iction, a challenge to the vires of the statutes or delegated legislation, we are of the view that the present writ application filed beyond the statutory period of filing appeal may not be entertained in any case by the High Court in exercise of power under Article 226 of Constitution of India.

In present case, the respondent department by way of supplementary counter-affidavit, has brought on record the details of the service of notice and adjudication order as well to the petitioner by different modes in addition to its service on the common portal. Despite the proper service of the impugned order dated 25.02.2022, the petitioner has not filed any appeal under the provisions of Section 107 of the BGST Act, 2017 and instead has filed the present writ application after an inordinate delay of four years and one month.

Accordingly, in terms of the Judgment passed by this Court in the matter of M.K. Traders Vrs. State of Bihar & Ors. (Supra), the present writ application is not entertainable on the ground of gross delay of four years and one month, eschewing this Court to consider the present matter on merit and is dismissed.