M/S Rajeev Kumar Singh vs. The State Of Bihar

In present writ application the petitioner has prayed for quashing of order dated 31.12.2023, passed under Section 73(9) of CGST Act, 2017 read with BGST Act, 2017. 3. The learned counsel for the petitioner submits that petitioner is a registered person under CGST/BGST Act, 2017 and deals in wholesale trading of rods and its place of business is in Begusarai.

Learned counsel for petitioner submits that for period 2017-2018, respondent no. 2 has initiated a proceeding of scrutiny under Section 61 of the Central Act and has issued notice in form of GST ASMT- 10, dated 08.10.2021. 5. Learned counsel for the petitioner submits that a tax consultant on its behalf takes care of GST related compliances including filing of returns and responding to notices.

Learned counsel for petitioner referring paragraph 16 of writ application submits that the total contractual receipts as per the profit and loss account for the financial year 2017-2018 amounted to Rs. 2,75,82,013, attracting a tax liability of Rs. 49,64,762 at the rate of 18 %, however, the taxable value declared in GSTR- 3B return was Rs. 2,15,63,092.76 and the tax paid thereon was Rs. 23,32,097.40, resulting in a shortfall of Rs. 23,62,664.50 and this discrepancy occurred due to transitional difficulties and technical errors on the GST portal during the initial phase of implementation.

Learned counsel for the petitioner further submits that on 18.02.2022 a show cause notice under Section 73 for period of 2017-2018 was uploaded on the common portal. On common portal an order dated 31.12.2023 under Section 73(9) of BGST Act was uploaded whereby liability of Rs. 28,33,058/- was imposed and consequently summary demand notice in DRC-07 was issued 3/5 to it. It is further contended that the notices and the order uploaded on the common portal were never brought to the conscious knowledge of the petitioner so as to let the petitioner have actual knowledge of such proceeding and the impugned order came to be passed ex parte against the petitioner.

Per contra, Mr. Vivek Prasad, learned counsel for respondent department submits that against impugned order dated 31.12.2023, the petitioner has an alternative remedy of appeal before the learned Appellate Authority under the provision of Section 107 of the BGST Act but the petitioner instead of filing the appeal before the learned Appellate Authority has filed the present writ application almost after a delay of 21 months.

Learned counsel for respondent department referring paragraph 15 of the counter affidavit submits that the representative of the petitioner namely, Sri Kumar Babu has appeared 18.02.2022 in response to the notice in ASMT-10, but did not adduce any documentary evidence in support of his claim. It is further contended that as the petitioner failed to respond to or act on the notices served on it. The respondent Adjudicating Authority was left with no option, but to pass the impugned adjudication order dated 31.12.2023. 10. Heard the parties and on appreciation of the respective submissions, we are of the opinion that the present case 4/5 & Ors.). The relevant paragraph 9 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 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 5/5 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 against impugned order dated 31.12.2023 passed under Section 73(9) of CGST/BGST Act, 2017 has not filed statutory appeal and instead has filed present writ application after a delay of almost twenty-one months. During proceeding representation of petitioner was there and it is not a ex parte proceeding.

Accordingly, present writ application filed almost after a delay of twenty-one month of passing of impugned order dated 31.12.2023 and as per Judgment of this Court in CWJC 6180 of 2026 (MK Traders Vs. The State of Bihar & Ors.) (Supra) the writ petition is not entertainable and is dismissed.