Kumar Mritunjay Construction Private Limited vs. The State Of Bihar

In present writ application the petitioner has prayed for quashing of order dated 18.11.2021 passed under Section 73(9) of CGST/BGST Act, 2017 for period 2020-2021. Petitioner further prays for restraining the respondent from taking any coercive action against the petitioner in terms of Section 79 of the BGST/CGST Act, 2017 for recovery of amount.

Learned counsel for the petitioner submits that it is a registered person having registration no. GSTIN/ID: 10AADCK5080G1ZY and is engaged in the business of civil construction services and mainly perform the assignment of government contracts.

Learned counsel for the petitioner submits that it was served with the show cause notice in form of GST DRC-01 under Section 73, dated 17.08.2021 and further submits that the petitioner could not comply with the notice as it was not duly served to the petitioner.

Learned counsel for the petitioner submits that the respondent no. 2 has passed the order under Section 73(9) of the CGST/BGST Act, 2017 on 18.11.2021, whereby an amount of Rs. 28,88,946/- was imposed against tax, penalty and interest.

Learned counsel for the petitioner submits that before passing the adverse order, the notice of personal hearing was not served to the petitioner and the petitioner was not aware that there is any show cause notice because it was not provided to it on its address. The respondent authority has failed to adhere to the mandatory requirement for Section 75(4) of the Act and passed the adverse order against the petitioner.

Learned counsel for the petitioner referring the 3/6 supplementary affidavit filed by it submits that its registration was cancelled on 11.09.2020 after the show cause notice was issued by the respondent dated 19.08.2020. 8. Per contra, Mr. Vivek Prasad, learned GP-7 for the respondent department submits that petitioner is a work contractor. It had filed its return in form GSTR-3B for period 2020-2021 showing its turnover as nil as against the turnover to the tune of Rs. 1,99,78,877/- reflected in GSTR-07 filed by the employer and on detection of huge suppression, the notice in GST DRC-01 was issued on 17.08.2021 and served to it on common portal. The petitioner has not acted or responded to the said notice and as such a liability to the extent of Rs. 28,88,946/- was created against the petitioner vide order dated 18.11.2021. The show cause notice dated 17.08.2021 fixes date of personal hearing as 01.09.2021, which the petitioner failed to avail. The contention of the petitioner is misconceived.

Learned counsel for the responded department further submits that against impugned order dated 18.11.2021 the petitioner has an alternative remedy of appeal under the provision of 107 of CGST/BGST Act, 2017, the petitioner has not availed the remedy of appeal and instead has filed the present writ application after an inordinate delay of almost three 4/6 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 such financial year. It may be mentioned here that the registered person is allowed to rectify the 5/6 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

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 petitioner admits the receipt of 6/6 notice dated 17.08.2021 and admits non-compliance with the notice, compelling the respondent authority to pass the impugned order dated 18.11.2021. The petitioner in its indolent approach also failed to file an appeal under Section 107 of the CGST/BGST of Bihar & Ors. (Supra), the present writ application is not entertainable on the ground of delay and is dismissed.