M/S Mamta Food Plaza vs. The Union Of INDIA

In the present case, the petitioner has prayed for quashing of order dated 08.12.2023 passed by respondent no.6 2/8 demanding tax, interest and penalty amounting to Rs. 8,92,508/- under CGST/BGST Act, 2017 for period July 2017 to March 2018 on the ground that it is without any signature of the issuing authority. It further prays for setting aside the Notification No. 9 of 2023 dated 31.03.2023 by which the time limit specified under Section 73(10) to pass an order under Section 73(9) of the CGST/BGST Act, 2017 was extended. It further prays for quashing of show cause notice dated 08.09.2023 on the ground that it is defective and in violation of Section 75(4) of the CGST/BGST Act, 2017. 3. Learned counsel for the petitioner submits that the petitioner is a proprietorship concern and as a registered person, is engaged in the business of restaurant service.

Learned counsel for the petitioner submits that on 28.02.2023, a notice in Form GST ASMT-10 was issued by respondent no.6 alleging various discrepancies and was asked to submit its reply by 20.03.2023 i.e., less than 30 days which is in violation of Section 61 read with Rule 99 CGST/BGST Act & Rules, 2017. It further says that the notice was served only on the common portal and not on the petitioner either through registered mail or any other mode prescribed under the Act in violation of Section 169 of the CGST/BGST Act, 2017. 3/8

Learned counsel for the petitioner submits that for period July 2017 to March 2018, a show cause notice under Section 73(1) of CGST/BGST Act, 2017, was issued in Form DRC-01 dated 08.09.2023 on common portal. The petitioner could not file the reply as it was uploaded only on the common portal and not served on the petitioner either through registered mail or any other mode prescribed under the Act in violation of Section 169 read with Section 146 of BGST Act, 2017. 6. Learned counsel for the petitioner further submits that the respondent no. 6 vide order dated 08.12.2023, passed impugned demand order in Form DRC-07, demanding a total sum of Rs. 8,92,508/- against tax, interest and penalty, without granting any notice of personal hearing under Section 75(4) of BGST/CGST Act, 2017. 7. Learned counsel for the petitioner further submits that as per the provision of Section 73(9), it is incumbent upon the proper officer to determine the tax within a period of three years from the due date of furnishing annual return for the financial year to which such disputes relates to. In present case, the impugned order has been passed beyond the period of three years of filing of the annual return.

Learned counsel for the petitioner further relying 4/8 on the Judgment passed by a Coordinate Bench of this Court in CWJC No. 203 of 2025 in the matter of M/s Medicana Vs. Union of India, submits that there is a requirement for service of notice through registered post under the acknowledgment, having regard to the fact that it has a civil consequences to the petitioner, in addition to service of notice on the common portal.

Per Contra, Sri Prabhat Kumar, learned AC to GA11 submits that admittedly the show cause notices were issued to the petitioner under the provision of Section 73(1) BGST/CGST Act, 2017 on the common portal which is a sufficient complaince under the provision of Section 169 of the BGST/CGST Act, 2017. 10. Learned counsel for the respondent department referring to the supplementary counter-affidavit file by them in compliance of order dated 20.08.2026 passed in present writ application submits that the petitioner was also informed through SMS and E-mail, reminders were also sent through SMS and E-mail. Referring page 9 of the supplementary counter-affidavit that DRC-01 was sent to the registered E-mail of the petitioner mamtafoodplaza75@gmail.com with time stamp of 11:33:03 on 08.09.2023 and the SMS in this regard was issued on the registered mobile number 9934046038. Therefore, there 5/8 is a sufficient compliance of Section 169 of the CGST/BGST Act, 2017. 11. Learned counsel for the respondent department further submits that against the impugned order dated 08.12.2023, the petitioner has an alternative remedy of appeal under the provision of Section 107 of the BGST/CGST Act, 2017, which the petitioner has not availed. In present case, there is a sufficient compliance of Section 169 of the BGST/CGST Act, 2017 and is not an exceptional case in which this Hon’ble & Ors. The relevant paragraphs 9, 9.1 and 9.2 are reproduced hereinbelow:-

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 6/8 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 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 7/8 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 orincorrect 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, 8/8 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, in its indolent approach, has not submitted the reply to the show cause notice served on the common portal, registered E-mail, through SMS, failed to file the statutory appeal, and has filed the present writ application after a delay of almost more than two years.

Accordingly, the present writ application is not entertainable in terms of Judgment passed by this Court in the matter of M.K. Traders Vs. State of Bihar & Ors. on the ground of delay, eschewing this Hon’ble court to consider the merit of the writ application. The writ application is dismissed.