Naveen Kumar vs. The Union Of INDIA

In present writ application, the petitioner has prayed for quashing of order dated 30.12.2023, passed by respondent No.

The petitioner is a registered person with Darbhanga Circle-2 of Commercial Taxes Department. It has entered into an agreement with Bihar State Food and Civil Supply Corporation Limited for transport handling- Cum 2/6 Delivery of food grain for doorstep.

Learned counsel for the petitioner submits that it has filed an Income Tax return for financial Year 2017-18 and on the basis of this a show cause notice was issued to it vide order dated 29.09.2023. The petitioner submitted his reply on 23.12.2023 stating therein that petitioner being the registered handling agent of BSFCI is exempted vide notification no. 12/2017, dated 28.06.2017 and accordingly the applicable tax is nil.

Learned counsel for the petitioner further submits that it was in receipt of show cause notice dated 14.11.2023 for cancellation of his registration and the respondent, vide order dated 30.12.2023 has raised a demand of Rs. 30,42,282/- against tax, interest and penalty.

Per contra, learned counsel appearing for the Respondent Department submits that the petitioner has filed return for 2017-18 admitting nil turnover. On perusal of Form AS-26 available on the portal of the Income Tax Department, it was detected by the Assessing authority that the turnover of the petitioner was reflected at Rs. 1,22,18,000/- during the period. Detecting such discrepancy, the Assessing Authority issued a notice in Form DRC-01, dated 29.09.2023 to the petitioner, 3/6 which was followed by three reminders. The petitioner has replied to the third reminder and claimed that it supplies exempted services in form of transportation of food grain meant for distribution through PDS. But the petitioner failed to substantiate its claim that its turnover was constituted by consideration received from transportation of food grain meant for PDS alone with any documentary evidence/books of accounts. As such the proceeding resulted into imposition of the impugned demand to the tune of Rs. 30,42,282/- against tax, interest and penalty.

Learned counsel for the Respondent Department further submits that against the impugned order dated 30.12.2023, the petitioner has a statutory remedy of appeal available under the provision of Section 107 of CGST/BGST Act, 2017 which the petitioner has not availed and filed the present writ application after delay of almost 20 months.

Heard the parties and with due appreciation of the respective submissions, we are of the considered opinion that the present case is covered by judgment dated 14.07.2026 passed by this court in CWJC No. 6180 of 2026 (M/s M. K Traders Vs State of Bihar & Ors). The relevant paragraph 9, 9.1 and 9.2 are reproduced hereinbelow:- “9. To start with issue no. (i)- the 4/6 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.” “9.1 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 5/6 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 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.” “9.2 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 6/6 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 receipt of the show cause notice and submission of reply by the petitioner is admitted. The petitioner has an alternative remedy of appeal against the impugned order dated 30.12.2023 under the provision of Section 107 of CGST/BGST Act. The petitioner in its indolent approach, has failed to avail the remedy of the appeal. Even the present writ application has been filed almost after period of 20 months.

Accordingly, in terms of the judgment passed by this Court in the matter of M/s M K Traders Vs State of Bihar & Ors (supra), the present writ application is not entertainable eschewing this Court to consider the present matter on merit and is dismissed.