Metston Technologies Private Limited vs. The State Of Bihar

In present case the petitioner has prayed for quashing of order dated 29.12.2023 passed by respondent no. 3 for period 2017-2018 under Section 73(9) of CGST/BGST Act, 2017, whereby it has been made liable to pay a sum of Rs. 41,60,598/- against tax, interest and penalty.

Learned counsel for the petitioner submits that the petitioner is a director of duly incorporated private limited company. He is engaged in the business of providing services, inter alia, by supplying security personnel and housekeeping staff to its clients. The petitioner is a registered person having GSTIN No. 10BKTPS3627K1ZR and falls under the juri iction of Patna Central 2 circle, Patna.

Learned counsel for the petitioner submits that respondent no. 3 has issued show cause notice under the provision of Section 73(1) of the BGST Act, 2017 in Form DRC-01 for period 2017-2018 on 26.09.2023. 5. Learned counsel for the petitioner submits that no scrutiny proceedings were initiated in respect of the returns filed by the petitioner for the period 2017-2018 under Section 61 of the GST, Act, 2017 and it was not served with the notices in Form GST ASMT-10, as prescribed under Rule 99(1) of the CGST Rules, 2017. 6. Learned counsel for the petitioner further submits that the petitioner has submitted the reply to the show cause notice on 27.11.2023 seeking adjournment and for his personal reasons unable to pursue the matter. Respondent no. 3 passed the impugned order under Section 73(9) of the CGST Act, 2017 on 29.12.2023. 7. Learned counsel for the petitioner further submits that on 13.02.2026 a notice was issued by the respondent authorities for 3/8 payment of an amount of Rs. 41,60,598/- within a period of seven days, failing which coercive recovery proceedings were liable to be initiated against the petitioner.

Learned counsel for the petitioner submits that notice dated 13.02.2026 was issued at his erstwhile office address and during the relevant period, the petitioner had duly shifted his registered office/principal place of business and updated the same on portal and further submits that notice dated 13.02.2026 has not been served under Section 169 of the BGST Act which means gross violation of principles of natural justice.

Learned counsel for the petitioner accepts the issuance of show cause notice along with one reminder but denies the receipt of two subsequent reminders. Furthermore, the mobile number 9334037624 which finds mentioned in the impugned order does not belong to the petitioner or to any person associated with the petitioner’s office.

Learned counsel for the petitioner further submits that it was issued with a show cause notice dated 13.10.2021 from the office of the Deputy/Assistant Commissioner, CGST and CX, Central Division, for the financial years 2016-2017 and 2017-2018 (up to June 2017), under Section 67, 68 and 70 of the Finance Act, 1994, read with Rules 6 and 7 of the Service Tax Rules, 1994, alleging evasion and non-payment of service tax revenue, and further submits that for the same period demand-cum-show cause 4/8 notice dated 06.03.2024 was served. The petitioner has preferred an appeal which is pending before the office of the Commissioner, Central Excise and Service Tax and is pursuing the remedy.

Per contra, learned Mr. Vivek Prasad, G.P – 7 appearing for the respondent department, submits that the proper opportunity of hearing was adduced to the petitioner. It is the admitted position that the petitioner was served with the show cause notice and one reminder and accept that two other reminders and the phone number 9334037624 as appeared in the impugned order are on account of typographical error.

Learned counsel for the respondent department further submits that the petitioner in its pleading has accepted that no reply, for his personal reasons, has been filed despite knowledge and no representation has been made before the respondent authorities. Notice as well as the impugned order has been served to the petitioner on the common portal and the change of address of the petitioner is immaterial. Against the impugned order dated 29.12.2023 the petitioner has a remedy of appeal before the learned Appellate Authority under the provision of Section 107 of the BGST Act, 2017 which the petitioner has not availed and instead has filed the present writ application after an inordinate delay of two years and five months from passing of the impugned order and on this account the present writ application is fit to be rejected.

Heard the parties, upon due appreciation of the 5/8 respective submissions, this Court is of the view that the facts of present case is squarely covered by Judgment dated 14.07.2026 passed by this Court in CWJC No. 6180 of 2026 (MK Traders Vs. The State of Bihar & Ors.). The relevant paragraph 9, 9.1 and 9.2 are reproduced hereinbelow:- “9. 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 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 6/8 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 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 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 7/8 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 it is admitted position that the petitioner was issued with the show cause notice dated 26.09.2023 and one reminder to which the petitioner replied on 27.10.2023 and has prayed for adjournement of matter on personal ground. The petitioner was in knowledge that a proceeding under Section 73 of the BGST Act, 2017 has initiated but despite issuance of reminder, petitioner despite grant of adjournment choosed not to file its reply substantiating its defence in Form DRC-06 compelling respondent no. 3 to pass the order ex parte. Against this the petitioner has an alternative remedy to file an appeal under Section 107 of the BGST/CGST Act, 2017 but the petitioner in its indolent approach has choosed not to file appeal. Even the petitioner has filed the 8/8 present writ application after a substantial delay of 2 years and five months of passing of the impugned order dated 29.12.2023. 15. Accordingly, the present writ application in terms of the Judgment passed by this Court in the matter of MK Traders Vs. The State of Bihar & Ors. (Supra) is not entertainable, eschewing this Court to consider the present matter on merit and on the ground of delay, the writ application is dismissed.