[Cites 28, Cited by 0]
Gujarat High Court
M/S. Agrawal Enterprises vs State Of Gujarat on 16 January, 2026
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/SCA/386/2026 JUDGMENT DATED: 16/01/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 386 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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Approved for Reporting Yes No
Yes
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M/S. AGRAWAL ENTERPRISES
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR AS ASTHAVADI(3698) for the Petitioner(s) No. 1
MS. TANUSHREE SHRIMAL, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 16/01/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. RULE returnable forthwith. Learned AGP waives the
notice of Rule.
2. The present writ petition has been filed for quashing and
setting aside the order dated 30.09.2025 passed by the
respondent No.2, rejecting the appeal of the petitioner on the
ground of delay.
3. The brief facts of the case are that the petitioner is a
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partnership firm situated at the address mentioned in the
cause-title and has GST No. GSTN24ABNFA2763L1Z6. The
respondent No.3 issued a demand order against the petitioner
under Section 74(5) of the Central Goods and Service Tax
(CGST)/State Goods and Service Tax (SGST) Act, 2017
(hereinafter referred to as 'the Act' for short) dated
21.3.2024, calling upon the petitioner to pay tax of
Rs.1,98,720/- along with interest and penalty making total
demand of Rs.5,03,768/-.
4. It is the case of the petitioner that notice for personal
hearing was available on portal, which is dated 26.08.2025,
asking hearing on 02.09.2025. Further, as per the portal,
other dates which are mentioned for personal hearing are
06.09.2025 and 10.09.2025, but the petitioner was never
informed about such hearing by mail or post. Therefore, the
petitioner could not remain present for hearing. Thereafter,
by impugned order dated 30.9.2025, the appeal of the
petitioner has been rejected by the respondent No.2 on the
ground of delay.
5. Learned advocate Mr. A. S. Asthavadi for the petitioner
has submitted that in his application, the petitioner came to
know about the impugned demand order dated 21.3.2024,
only on 30.3.2025, and as soon as the petitioner came to know
about the order, it approached the department and the
concerned office, which advised the petitioner to either make
the payment or file appeal with condonation of delay. The said
aspect is not considered by the respondent No.2 while
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rejecting the appeal.
6. It is submitted that the appellate authority - respondent
No.2 has noted that the adjudication of order has been passed
online on GST portal and is intimated to the petitioner on
same day through e-mail and SMS, however, the respondent
No.2 has not confirmed the said aspect either with the
petitioner or with the officer who issued demand order.
7. It is further submitted that, by not condoning the delay
by the appellate authority, the same would cause harsh
financial loss to the petitioner, which is a small partnership
firm. Therefore, it would be in the interest of Justice to
condone the delay and consider the appeal of the petitioner on
merits. It is further submitted that even the order passed by
the appellate authority dated 30.09.2025 was made available
to the petitioner by sending an SMS dated 17.10.2025, though
the order mentioned outward number but no address of the
petitioner.
8. It is thus submitted that it is settled law that the
statutory appeal may not be rejected on the ground of delay
and the same is required to be considered on merits without
entering into the technicalities of delay when there is
justifiable reason for delay. It is further submitted that in the
present case, there is a justifiable reason for the petitioner for
filing the appeal at belated stage which may be considered in
the interest of justice by this Court.
9. Mr. Asthavadi, learned advocate for the petitioner has
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submitted that as far as this issue is concerned, petitioner was
issued advisory dated 29.06.2023 through e-mail for payment
of tax in view of Input Tax Credit (ITC) wrongly availed. The
petitioner has received reminder of advisory dated 10.08.2023
on his e-mail address, and he replied to the said advisory on
12.08.2023 through e-mail on 12.08.2023, and which was also
personally inwarded in the GST office on 17.08.2023.
10. It is submitted that the petitioner was issued DRC-01 A
dated 04.01.2024, which was replied by petitioner on
18.01.2024, 15.02.2024, 23.02.2024 and 04.03.2024.
11. While opposing the aforesaid submission, learned AGP
Ms. Tanushree Shrimal has submitted that appellate authority
has precisely held that it does not have power to condone the
delay beyond the limitation period of 120 days and hence as
per settled legal precedent, the writ petition may be
dismissed.
12. We have considered the rival submissions.
13. The petitioner filed the appeal under Section 107 of the
Act challenging the Demand order dated 21.03.2024
belatedly after 284 days. The only reason assigned by the
petitioner explaining the delay in his application at Annexure
"D" at Page-116 is in Para-3.1, which reads as under:
"3.1 The appellant due to not having the much
knowledge of the computer have appointed a part time
accountant for writing of his company account. The
accountant work is only is to maintain the books of
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account of the company and to file the statutory GST
return. Therefore, he had also not had the knowledge
that Order of Determination Tax DRC-07 have been
issued."
14. At this stage, we may refer to the observations of the
Apex Court in the case of Assistant Commissioner (CT)
LTU, Kakinada and Ors. v. Glaxo Smith Kline Consumer
Health Care Limited, (2020) 19 S.C.C 681. The Apex
Court while examining the issue analogs to the issue of Sales
Tax and VAT, Andhra Pradesh Value Added Tax Act, 2005 and
provisions of Section 31 of the Limitation Act, 1963, which
provides power of Appellate Authority to condone the delay
and power of High Court under Article 226 of the Constitution
of India has held that the Appellate Authority has no power to
condone the delay, if an appeal is preferred after the
aggregate period. However, it is held that though the powers
of High Court under Article 226 of the Constitution of India
are wide, but certainly not wider than the plenary powers
bestowed on the Apex Court under Article 142 of the
Constitution. It is held as under :-
"16. Indubitably, the powers of the High Court
under Article 226 of the Constitution are wide, but
certainly not wider than the plenary powers
bestowed on this Court under Article 142 of the
Constitution. Article 142 is a conglomeration and
repository of the entire judicial powers under the
Constitution, to do complete justice to the parties.
Even while exercising that power, this Court is
required to bear in mind the legislative intent and
not to render the statutory provision otiose. In a
recent decision of a three Judge Bench of this Court
in Oil and Natural Gas Corporation Limited vs.
Gujarat Energy Transmission Corporation Limited &
Ors., the statutory appeal filed before this Court was
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barred by 71 days and the maximum time limit for
condoning the delay in terms of Section 125 of the
Electricity Act, 2003 was only 60 days. In other
words, the appeal was presented beyond the
condonable period of 60 days. As a result, this Court
could not have condoned the delay of 71 days.
Notably, while admitting the appeal, the Court had
condoned the delay in filing the appeal. However, at
the final hearing of the appeal, an objection
regarding appeal being barred by limitation was
allowed to be raised being a jurisdictional issue and
while dealing with the said objection, the Court
referred to the decisions in Singh Enterprises vs.
Commissioner of Central Excise, Jamshedpur & Ors.,
Commissioner of Customs and Central Excise vs.
Hongo India Private Limited & Anr., Chhattisgarh
State Electricity Board vs. Central Electricity
Regulatory Commission & Ors. and Suryachakra
Power Corporation Limited vs. Electricity
Department represented by its Superintending
Engineer, Port Blair & Ors. and concluded that
Section 5 of the Limitation Act, 1963 cannot be
invoked by the Court for maintaining an appeal
beyond maximum prescribed period in Section 125
of the Electricity Act."
15. Thus, the Apex Court in the case of Glaxo Smith Kline
Consumer Health Care Limited (supra) has cautioned that
the provision of Section 5 of the Limitation Act, 1963 cannot
be invoked by the Court (High Court) for maintaining an
appeal beyond the maximum period provided in Section 125 of
the Electricity Act, 2023, it has held as under :-
"15...... In the subsequent decision in Mafatlal
Industries Ltd. v. Union of India, this Court went to
observe that an Act cannot bar and curtail remedy
under Article 226 or 32 of the Constitution. The
Court, however added a word of caution and
expounded that the Constitutional Court would
certainly take note of the legislative intent
manifested in the provisions of the Act and would
exercise its jurisdiction consistent with the
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provisions of the enactment. To put it differently,
the fact that the High Court has wide jurisdiction
under Article 226 of the Constitution does not mean
that it can disregard the substantive provisions of a
statute and pas orders which can be settled only
through a mechanism prescribed by the statute."
16. The Apex Court has also referred to the array of
decisions dealing with provision of Section 29 (2) of the
Limitation Act, 1963 in case of Special Legislation. One of
such which has been rendered in the said decision is in the
case of Oil and Natural Gas Corporation Limited v. Gujarat
Energy Transmission Corporation Limited and Others, (2017)
5 S.C.C. 42, wherein it is held thus :-
"15. From the aforesaid decisions, it is clear as
crystal that the Constitution Bench in Supreme
Court Bar Assn. v. Union of India, (1998) 4 SCC 409,
has ruled that there is no conflict of opinion in
Antulay case [A.R.Antulay v. R.S. Nayak, (1988) 2
SCC 602] or in Union Carbide Corpn. case [Union
Carbide Corpn. v. Union of India, (1991) 4 SCC 584]
with the principle set down in Prem Chand Garg v.
Excise Commr., AIR 1963 SC 996. Be it noted, when
there is a statutory command by the legislation as
regards limitation and there is the postulate that
delay can be condoned for a further period not
exceeding sixty days, needless to say, it is based on
certain underlined, fundamental, general issues of
public policy as has been held in Union Carbide
Corpn. case [Union Carbide Corpn. v. Union of India,
(1991) 4 SCC 584]. As the pronouncement in
Chhattisgarh SEB v. Central Electricity Regulatory
Commission, (2010) 5 SCC 23, lays down quite
clearly that the policy behind the Act emphasising
on the constitution of a special adjudicatory forum,
is meant to expeditiously decide the grievances of a
person who may be aggrieved by an order of the
adjudicatory officer or by an appropriate
Commission. The Act is a special legislation within
the meaning of Section 29(2) of the Limitation Act
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and, therefore, the prescription with regard to the
limitation has to be the binding effect and the same
has to be followed regard being had to its mandatory
nature. To put it in a different way, the prescription
of limitation in a case of present nature, when the
statute commands that this Court may condone the
further delay not beyond 60 days, it would come
within the ambit and sweep of the provisions and
policy of legislation. It is equivalent to Section 3 of
the Limitation Act. Therefore, it is uncondonable and
it cannot be condoned taking recourse to Article 142
of the Constitution."
17. The Apex Court has further held in the case of Glaxo
Smith Kline Consumer Health Care Limited (supra) as
under :-
"19. We may now revert to the Full Bench decision
of the Andhra Pradesh High Court in Electronics
Corporation of India Ltd. (supra), which had adopted
the view taken by the Full Bench of the Gujarat
High Court in Panoli Intermediate (India) Pvt. Ltd.
vs. Union of India & Ors.19 and also of the
Karnataka High Court in Phoenix Plasts Company vs.
Commissioner of Central Excise (AppealI),
Bangalore 20. The logic applied in these decisions
proceeds on fallacious premise. For, these decisions
are premised on the logic that provision such as
Section 31 of the 1995 Act, cannot curtail the
jurisdiction of the High Court under Articles 226 and
227 of the Constitution. This approach is faulty. It is
not a matter of taking away the jurisdiction of the
High Court. In a given case, the assessee may
approach the High Court before the statutory period
of appeal expires to challenge the assessment order
by way of writ petition 19 AIR 2015 Guj 97 20 2013
(298) ELT 481 (Kar.) 33 on the ground that the same
is without jurisdiction or passed in excess of
jurisdiction by overstepping or crossing the limits of
jurisdiction including in flagrant disregard of law
and rules of procedure or in violation of principles of
natural justice, where no procedure is specified. The
High Court may accede to such a challenge and can
also nonsuit the petitioner on the ground that
alternative efficacious remedy is available and that
be invoked by the writ petitioner. However, if the
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writ petitioner choses to approach the High Court
after expiry of the maximum limitation period of 60
days prescribed under Section 31 of the 2005
Act,the High Court cannot disregard the statutory
period for redressal of the grievance and entertain
the writ petition of such a party as a matter of
course. Doing so would be in the teeth of the
principle underlying the dictum of a three Judge
Bench of this Court in Oil and Natural Gas
Corporation Limited (supra). In other words, the fact
that the High Court has wide powers, does not mean
that it would issue a writ which may be inconsistent
with the legislative intent regarding the dispensation
explicitly prescribed under Section 31 of the 2005
Act. That would render the legislative scheme and
intention behind the stated provision otiose.
xxx xxx xxx
22. Suffice it to observe that this decision is on the
facts of that case and cannot be cited as a precedent
in support of an argument that the High Court is
free to entertain the writ petition assailing the
assessment order even if filed beyond the statutory
period of maximum 60 days in filing appeal. The
remedy of appeal is creature of statute. If the appeal
is presented by the assessee beyond the extended
statutory limitation period of 60 days in terms of
Section 31 of the 2005 Act and is, therefore, not
entertained, it is incomprehensible as to how it
would become a case of violation of fundamental
right, much less statutory or legal right as such."
18. Thus, the Apex Court has held that even if the writ
petition is filed after the expiry of maximum prescribed period
of limitation, though alternative efficacious remedy is
available, the High Court cannot disregard the statutory
period for redressal of the grievance and entertain the writ
petition of such a party as a matter of course and doing so
would be in teeth of principle of dictum underlying the dictum
of three Judge's Bench of the Apex Court in the case of
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Gujarat Energy Transmission Corporation Limited (supra).
The Apex Court has further held that, albeit, the High Court
has wide powers, but the same does not mean that it would
issue a writ which may be inconsistent with the legislative
intent regarding the dispensation explicitly prescribed under
Section 31 of the Andhra Pradesh Value Added Tax Act, 2005
and if the same is done, it would render the legislative
scheme and intention behind the stated provision otiose. Thus,
on the same principles as enunciated by the Apex Court, we
are not inclined to set aside the order passed by the Appellate
Authority and more particularly in wake of the lame excuse
given by the petitioner for condoning the delay such as the
illness of the Accountant and closure of business.
19. We may also refer to the observations of the Apex Court
in the case M/s. Singh Enterprise vs. Commissioner of Central
Excise, Jamshedpur & Ors., rendered in Appeal (Civil)
No.5949 of 2007 decided on 14.12.2007 wherein the Apex
Court has refused to accept the reason of belatedly filing of
the appeal on the pretext of lack of experience and closure of
business.
20. Section 107 (4) of the Act grants discretion to the
Appellate Authority, to allow additional one month in case
he/she is satisfied that the appellant was prevented by
"sufficient cause" from presenting the appeal after 90 days,
but within a period of 30 days. Thus, the discretion of the
Appellate authority ends on the completion of additional 30
days. Such discretion does not extend to powers under Article
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226 of the Constitution on India as well. The statute, thus
provides additional one month to file the appeal, and all the
reasons satisfying the expression "sufficient cause" can be
raised by the appellant. Similar expression is found in section
5 of the Limitation Act, 1963, and Section 29 of Limitation
Act, 1963 which deals with "Savings", which prevents the
overriding the provisions of specific statutes that have their
own distinct limitation periods. It permits such laws to govern
their own timelines while still leveraging the mechanics of the
Limitation Act. Thus, when an additional period of 30 days is
supplied by the statute over and above the basic period of 90
days, and the same stands exhausted, this Court cannot
exercise powers under Article 226 of the Constitution to dilute
the intention of the legislature and further extend the
limitation by condoning the delay by re-examining the
"sufficient cause". The reason assigned by the appellant is
also not palatable, as it is hard to believe, that in todays, era,
the appellant and his accountant are not having the
knowledge of operating the computers, and hence they did not
verify the order DRC-07. We clarify, that even if the appellant
had a valid reason and sufficient cause explaining the delay,
this Court cannot condone the delay beyond 120 days. The tax
payers are supposed to remain vigilant of all the proceedings
and have to timely verify the orders on the portal. The taxing
statutes operate in very strict time frame, and any relaxation
or easing of limitation period will have cascading effect on the
functioning of the revenue.
21. So far as the challenge of Demand Order is concerned,
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having availed its alternative efficacious remedy of filing the
appeal, this Court cannot call back and examine the Demand
Order. Having availed the remedy of filing an appeal as the
petitioner was aware that none of the issues either with
regard to violation of the principles of natural justice or the
lack of jurisdiction was involved and the issue was only
confined with the facts and the appropriate remedy was to
file an appeal as provided under the statute, this Court cannot
examine the validity or legality of the Order-in-Original.
22. In view of the settled legal precedents, this Court
cannot exercise its jurisdiction under Article 226 of the
Constitution of India condoning the delay. Thus, the writ
petition fails and the same is dismissed.
(A. S. SUPEHIA, J)
(PRANAV TRIVEDI,J)
SAJ GEORGE/DB/6
