M/S Kant Aushdhalaya vs. The Union Of INDIA

In the present case the petitioner has prayed for 2/7 quashing of order dated 09.08.2024 for period of 2019-2020 whereby and whereunder the ex parte assessment order has been passed for the aforesaid period and thereby imposing a total liability of Rs. 4,52,306/-. The petitioner further prays for setting aside the demand issued in form GST DRC 07 order dated 09.08.2024 passed by respondent no.- 6 and for setting aside show cause notice issued in Form GST DRC-01 dated 24.05.2024. 3. Learned counsel for the petitioner submits that it is a proprietorship concern, conducting the business of medicines is registered having GSTIN/ID : 10ABXPK3722H3ZO.

Learned counsel for the petitioner submits that it was issued with the notice in DRC-01 on 24.05.2024 issued under Section 73, Rule 100(2) and 142(1)(a) and further reminder notice was sent by the respondent no.- 6 on 26.07.2024. 5. Learned counsel for the petitioner further submits that the petitioner was served with summary of assessment order dated 09.08.2024 and the consequential demand in form DRC- 07 dated 09.08.2024 wherein a total liability of Rs. 4,52,306/- has been imposed on the petitioner.

Learned counsel for the petitioner further submits 3/7 that the Assessing Officer while issuing impugned assessment order dated 09.08.2024 has failed to take into consideration, the actual entitlement of petitioner for claiming input tax credit on the basis of the returns filed and the invoices/ payment details held by the petitioner.

Learned counsel for the petitioner further submits that petitioner relies on the Judgment reported in M/s 09.08.2024 passed under Section 73(9) of BGST/CGST Act, 2017 the petitioner has preferred the present writ application after an inordinate delay of more than seven months i.e. after passage of statutory period for filing appeal and on this ground alone the writ application is fit to be rejected.

Learned counsel for the respondent department further submits that admittedly for period 2019-2020 the show cause notice was issued to the petitioner on 24.05.2024 in Form DRC- 01 and reminder notice was issued on 26.07.2024 but 4/7 petitioner choosed not to reply to the show cause notice, compelling respondent authority to pass the impugned order dated 09.08.2024. The petitioner has an alternative remedy of appeal under the provision of Section 107 of the CGST/BGST Act, 2017 but instead the petitioner has preferred the present writ application after inordinate delay of more than 7 months.

Heard the parties, upon due appreciation of the 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 5/7 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 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 6/7 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 notice along with the reminders were served to the petitioner, and in its indolent approach, the petitioner choose not to reply the same. Further the impugned order passed under Section 73(9) of 7/7 CGST/ BGST Act, 2017 the petitioner has not availed the remedy of statutory appeal and after passage of statutory period of filing appeal has filed the present writ application after an inordinate delay of more than seven 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 eschewing this Court to consider the present matter on merit and is dismissed.