M/S Kemford Healthcare Private Limited vs. The State Of Bihar

In present writ application, the petitioner has prayed for quashing of order dated 27.02.2025 passed under Section 73(9) of the CGST/BGST Act, 2017 for period 2020- 2021, whereby amount of Rs. 18,69,295/- has been created against tax, penalty and interest. The petitioner has further prayed for quashing of show cause notice dated 28.11.2024 issued under Section 73(1) of BGST/CGST Act, 2017, as the 2/6 date of personal hearing was on the same date as of the last date to reply which is in violation of Section 75(4) of the BGST/CGST Act, 2017. 3. Learned counsel for the petitioner submits that petitioner is a registered person and is engaged in the business of wholesale and retail medicine.

Learned counsel for the petitioner submits that the show cause notice dated 28.11.2024 was issued by respondent no. 3 alleging suppression of turnover, short payment of tax, excess ITC availed for the period 2020-2021. The petitioner admits that it could not reply to the notices as they were only uploaded on GST common portal and the respondents have not served the notices through registered mail or any other mode in violation of Section 169 read with Section 146 of BGST/CGST Act, 2017. 5. Learned counsel for the petitioner submits that without affording proper opportunity of personal hearing and considering the fact on record respondent no. 3 has passed the ex parte impugned order dated 27.02.2025 imposing an amount of Rs. 18,69,295/- against tax, interest, and penalty for the period 2020-2021 which is totally unjustified and vindictively passed in violation of principles of natural justice.

Per contra, Sri Vivek Prasad, learned GP-7 appearing for the respondent department submits that for period 2020-2021 the petitioner has filed GST return and in course of scrutiny of its return, it was detected by the adjudicating authority that the petitioner had availed huge input tax credit on inward supply in excess of its eligibility and on the basis of the discrepancy a show cause notice dated 28.11.2024 was issued under Section 73(1) of CGST/BGST Act on the common portal, which is a valid mode of service as per section 169 of the CGST/BGST Act, 2017. The petitioner for the reason best known to him, has not acted or responded to the show cause notice. Referring to the impugned order learned counsel for the respondent department submits that three adjournments and three reminders were given on different dates to the petitioner to substantiate its stand but the petitioner failed to appear or provide any documentary evidences, compelling the respondent no. 3 to pass the impugned order dated 27.02.2025. 7. Learned counsel for the respondent department submits that the petitioner has an alternative remedy of statutory appeal under the provision of Section 107 of the CGST/BGST Act, 2017 against the impugned order dated 27.02.2025. The petitioner has not filed the statutory appeal and instead has filed 4/6 the present writ application after a delay of almost 13 months and on this ground alone the present writ application is fit to be rejected.

Heard the parties. Upon due appreciation of the respective submissions, this Court is of opinion that the facts of the 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 9.1 and 9.2 are reproduced hereinbelow:- “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 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 5/6 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 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 admittedly the show cause notices were duly received by the petitioner, prayer of adjournment on three counts has been allowed by the respondent authorities. Further, three reminders were also sent on the common portal of the petitioner, despite the opportunity of hearing, the petitioner has failed to provide any documentary evidence to substantiate its claim, compelling the respondent authority to pass the impugned order. The petitioner in its indolent approach has also not filed appeal within the statutory period of three months and has filed the present writ application after a delay of almost 13 months.

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 on the ground of delay and is dismissed. sweta/- (Anil Kumar Sinha, J) ( Vikash Kumar, J) U