Orissa High Court
Abhinandan Sahoo vs Chief Commissioner Of Ct & Gst on 13 August, 2025
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.19732 of 2025
In the matter of an Application under Articles 226 & 227 of
the Constitution of India, 1950
***
Abhinandan Sahoo ... Petitioner
-VERSUS-
Chief Commissioner of CT & GST
and others. ... Opposite Parties.
Counsel appeared for the parties:
For the Petitioner : Mr. Madhab Lal Agarwal,
And
Ms. Zenish Mary Wallace,
Advocates
For the Opposite Parties : Mr. Sunil Mishra,
Standing Counsel
for CT & GST Organisation and
Mr. Avinash Kedia,
Junior Standing Counsel,
for Central Excise, GST
and Customs Department
P R E S E N T:
HONOURABLE CHIEF JUSTICE
MR. HARISH TANDON
AND
HONOURABLE JUSTICE
MR. MURAHARI SRI RAMAN
Date of Hearing : 13.08.2025 :: Date of Order : 13.08.2025
O RDER
1. In the garb of challenging order dated 21st August, 2024
passed by the Assistant Commissioner of State Tax,
Dhenkanal Circle, Angul, Odisha-opposite party no.2
under Section 73 of the Central Goods and Services Tax
Act, 2017 and the Odisha Goods and Services Tax Act,
2017 (collectively be called "the GST Act") for the tax
periods from April, 2019 to March, 2020, the petitioner
craves to question the exercise of power under Section
168A to issue Notification No.09/2023-Central Tax,
dated 31st March, 2023 vide Annexure-6 and Notification
No.56/2023-Central Tax, dated 28th December, 2023
vide Annexure-7 by the Government of India in Ministry
of Finance (Department of Revenue) Central Board of
Indirect Taxes and Customs extending the period of
limitation to pass an order under Section 73 by way of
filing this writ petition invoking provisions under Articles
226 & 227 of the Constitution of India.
2. Facts as adumbrated by the writ petitioner reveals that
upon scrutiny of returns filed by the petitioner-assessee
under Section 39 of the GST Act, in response to notice
dated 18.03.2021 in GST ASMT-10 on the allegation of
understatement of tax liability in terms of facts and
figures disclosed in Form GSTR-3B as against Form
GSTR-1, the Assistant Commissioner of State Tax,
Dhenkanal Circle, Angul, Odisha-opposite party no.2 a
reply in Form GST ASMT-11 under Section 61 was
submitted on 30.06.2021 and payment made in Form
GST DRC-03 contemplated under Rule 142(2) and Rule
142(3) was also furnished. Nevertheless, a show cause
notice dated 18.05.2024 in Form DRC-01 was issued
invoking Section 73. In absence of any reply, the
adjudicating authority proceeded to pass order dated
18.05.2024. Accordingly, a summary of the order dated
21.08.2024 in Form GST DCR-07 was also issued
directing the petitioner to make payment of Tax of
Rs.14,27,419.56, interest of Rs.10,48,156.14 and
penalty of Rs.1,42,741.96 by the Assistant State Tax
Officer, Dhenkanal Circle, Angul.
2.1. Said order is under challenged in the present writ
petition on the premise that the said adjudication order
is hit by limitation contained under Section 73(10) of the
GST Act, notwithstanding such statutory period has
been extended from time to time in exercise of powers
under Section 168A of the GST Act by virtue of
Notifications dated 31st March, 2023 and 28th December,
2023 under Annexures-6 & 7 respectively.
3. Mr. Madhab Lal Agarwal along with Ms. Zenish Mary
Wallace, learned Advocates appearing for the petitioner
submitted that the order impugned cannot be sustained
inasmuch as the statutory period of limitation specified
under Section 73 of the GST Act could not be extended
by virtue of Notifications issued under Section 168A of
the GST Act.
4. Mr. Sunil Mishra, learned Standing Counsel for CT &
GST Department along with Mr. Avinash Kedia, learned
Junior Standing Counsel for Central Excise, GST and
Customs Department unison submitted that the
petitioner has alternative remedy to challenge the order
dated 21st August, 2024, but circumventing such
remedy, the petitioner should not have approached this
Court straightway by way of this writ petition on the
specious plea that the authority concerned has
transgressed his power under Section 73(10) read with
Notifications issued under Section 168A of the GST Act.
4.1. Laying emphasis on the pleading contained at Ground
no.'S' of paragraph-18 of the writ petition it is submitted
that the mistake in the claim of exemption/tax free
transactions in returns has been admitted by the
petitioner. Therefore, he fervently prayed not to entertain
this writ petition, as adjudication on facts needs to be
resolved by the authorities vested with power under the
GST Act and Rules thereunder.
5. Heard Mr. Madhab Lal Agarwal, learned counsel along
with Ms. Zenish Mary Wallace, learned counsel
appearing for the petitioner and Mr. Sunil Mishra,
learned Standing Counsel for CT & GST Department
along with Mr. Avinash Kedia, learned Junior Standing
Counsel for Central Excise, GST and Customs
Department.
6. Considered the material available on record. It is
revealed from ground no.'S' of paragraph-18 of the writ
petition as follows:
"S. For that the petitioner is not liable to pay tax has
demand under Annexure-4. The petitioner has
effected tax free/exempted supplies during the year.
However, due to clerical mistake and
inadvertently, the tax free and exempted
supplies were wrongly reported in GSTR 1 as
taxable supplies, giving rise to the difference
in tax liability declared in GSTR 1 vis-à-vis
GSTR 3B."
6.1. In view of clear and candid admission of the petitioner
with respect to mistake of fact in claiming tax free and
exempted supplies, this Court is not inclined to
entertain this writ petition, for such factual aspect is
subject to scrutiny and appreciation of evidence by the
fact-finding authorities empowered under the GST Act
and Rules framed thereunder.
6.2. Further scrutiny of writ petition does not disclose any
plausible reason, much less reason, to demonstrate the
circumstances which prevented the petitioner from
approaching this Court within reasonable period
challenging the order under Section 73 of the GST Act.
Whereas said order was framed on 21st August, 2024,
the petitioner has filed this writ petition on 8th July,
2025.
6.3. This Court is conscious that no time limit is prescribed
to approach writ Court, yet the petitioner is required to
ascribe reason explaining the inordinate delay in filing
application to invoke the writ jurisdiction.
6.4. This Court, appreciating the objection against
entertainment of writ petition as set forth by the learned
Standing Counsel for the CT & GST Department that the
petitioner should have filed the writ petition within the
normal time specified under the relevant provisions of
the statute, restrains to exercise its discretionary power
to entertain writ jurisdiction. No semblance of dispatch
has been shown by the petitioner to challenge the order,
which was passed way back on 21st August, 2024.
6.5. The maxim "Vigilantibus non dormientibus jura
subveniunt" which means that the law assists those who
are vigilant with their rights and not those that sleep
thereupon is very seemly applicable to the case of the
petitioner as the impugned order has been assailed in
the writ petition after a gap of around 11 months since it
is made.
6.6. In the case of State of Madhya Pradesh Vrs. Nandlal
Jaiswal, (1986) 4 SCC 566, the Hon'ble Supreme Court
has held as follows:
"24. Now, it is well settled that the power of the High
Court to issue an appropriate writ under Article 226
of the Constitution is discretionary and the High
Court in the exercise of its discretion does not
ordinarily assist the tardy and the indolent or the
acquiescent and the lethargic. If there is
inordinate delay on the part of the petitioner
in filing a writ petition and such delay is not
satisfactorily explained, the High Court may
decline to intervene and grant relief in the
exercise of its writ jurisdiction. The evolution of
this rule of laches or delay is premised upon a
number of factors. The High Court does not
ordinarily permit a belated resort to the
extraordinary remedy under the writ jurisdiction
because it is likely to cause confusion and public
inconvenience and bring in its train new injustices.
The rights of third parties may intervene and if the
writ jurisdiction is exercised on a writ petition filed
after unreasonable delay, it may have the effect of
inflicting not only hardship and inconvenience but
also injustice on third parties. When the writ
jurisdiction of the High Court is invoked,
unexplained delay coupled with the creation of third
party rights in the meanwhile is an important factor
which always weighs with the High Court in
deciding whether or not to exercise such jurisdiction.
We do not think it necessary to burden this
judgment with reference to various decisions of
this Court where it has been emphasised time
and again that where there is inordinate and
unexplained delay and third party rights are
created in the intervening period, the High
Court would decline to interfere, even if the
State action complained of is unconstitutional
or illegal. We may only mention in the passing two
decisions of this Court one in Ramana Dayaram
Shetty Vrs. International Airport Authority of India,
(1979) 3 SCC 489 = AIR 1979 SC 1628 = (1979) 3
SCR 1014 and the other in Ashok Kumar Mishra
Vrs. Collector, (1980) 1 SCC 180 = AIR 1980 SC 112
= (1980) 1 SCR 491. We may point out that in R.D.
Shetty case, even though the State action was held
to be unconstitutional as being violative of Article 14
of the Constitution, this Court refused to grant relief
to the petitioner on the ground that the writ petition
had been filed by the petitioner more than five
months after the acceptance of the tender of the
fourth respondent and during that period, the fourth
respondent had incurred considerable expenditure,
aggregating to about Rs 1.25 lakhs, in making
arrangements for putting up the restaurant and the
snack bar. Of course, this rule of laches or delay
is not a rigid rule which can be cast in a strait
jacket formula, for there may be cases where
despite delay and creation of third party rights
the High Court may still in the exercise of its
discretion interfere and grant relief to the
petitioner. But, such cases where the demand
of justice is so compelling that the High Court
would be inclined to interfere in spite of delay
or creation of third party rights would by their
very nature be few and far between. Ultimately
it would be a matter within the discretion of
the court; ex hypothesi every discretion must
be exercised fairly and justly so as to promote
justice and not to defeat it."
6.7. In the case of Chennai Metropolitan Water Supply and
Sewerage Board Vrs. T.T. Murali Babu, (2014) 1 SCR 987,
the Hon'ble Supreme Court has held as follows:
"16. Thus, the doctrine of delay and laches should not be
lightly brushed aside. A writ court is required to
weigh the explanation offered and the acceptability
of the same. The court should bear in mind that it is
exercising an extraordinary and equitable
jurisdiction. As a constitutional court it has a
duty to protect the rights of the citizens but
simultaneously it is to keep itself alive to the
primary principle that when an aggrieved
person, without adequate reason, approaches
the court at his own leisure or pleasure, the
Court would be under legal obligation to
scrutinize whether the lis at a belated stage
should be entertained or not. Be it noted, delay
comes in the way of equity. In certain circumstances
delay and laches may not be fatal but in most
circumstances inordinate delay would only invite
disaster for the litigant who knocks at the doors of
the Court. Delay reflects inactivity and inaction on
the part of a litigant-- a litigant who has forgotten
the basic norms, namely, 'procrastination is the
greatest thief of time' and second, law does not
permit one to sleep and rise like a phoenix. Delay
does bring in hazard and causes injury to the lis. In
the case at hand, though there has been four years'
delay in approaching the court, yet the writ court
chose not to address the same. It is the duty of the
court to scrutinize whether such enormous delay is
to be ignored without any justification. That apart, in
the present case, such belated approach gains more
significance as the respondent-employee being
absolutely careless to his duty and nurturing a
lackadaisical attitude to the responsibility had
remained unauthorisedly absent on the pretext of
some kind of ill health. We repeat at the cost of
repetition that remaining innocuously oblivious to
such delay does not foster the cause of justice. On
the contrary, it brings in injustice, for it is likely to
affect others. Such delay may have impact on
others' ripened rights and may unnecessarily drag
others into litigation which in acceptable realm of
probability, may have been treated to have attained
finality. A court is not expected to give indulgence to
such indolent persons-- who compete with
'Kumbhakarna' or for that matter 'Rip Van Winkle'.
In our considered opinion, such delay does not
deserve any indulgence and on the said ground
alone the writ court should have thrown the
petition overboard at the very threshold."
6.8. In Maharashtra SRTC Vrs. Balwant Regular Motor
Service, AIR 1969 SC 329 it has been observed as
follows:
"11. *** It is well-established that the writ of
certiorari will not be granted in a case where
there is such negligence or omission on the
part of the applicant to assert his right as,
taken in conjunction with the lapse of time and
other circumstances, causes prejudice to the
adverse party. The principle is to a great extent,
similar to though not identical with the exercise of
discretion in the Court of Chancery. The principle
has been clearly stated by Sir Barnes Peacock in
Lindsay Petroleum Co. Vrs. Prosper Armstrong Hurd,
Abram Farewall, and John Kemp, (1874) 5 PC 221
at p 239 as follows:
'Now the doctrine of laches in Courts of Equity is not
an arbitrary or a technical doctrine. Where it would
be practically unjust to give a remedy, either
because the party has, by his conduct, done that
which might fairly be regarded as equivalent to a
waiver of it, or where by his conduct and neglect he
has, though perhaps not waiving that remedy, yet
put the other party in a situation in which it would
not be reasonable to place him if the remedy were
afterwards to be asserted, in either of these cases,
lapse of time and delay are most material. But in
every case, if an argument against relief,
which otherwise would be just, is founded upon
mere delay, that delay of course not amounting
to a bar by any statute of limitations, the
validity of that defence must be tried upon
principles substantially equitable. Two
circumstances, always important in such
cases, are, the length of the delay and the
nature of the acts done during the interval,
which might affect either party and cause a
balance of justice or injustice in taking the one
course or the other, so far as relates to the
remedy.'
This passage was cited with approval by this Court
in a recent case-- Moon Mills Ltd. Vrs. M.R. Mehar,
President, Industrial Court, Bombay, AIR 1967 SC
1450, 1454. In our opinion, the principle of this
decision applies to the present case and since
Respondent 1 and the other private operators had
not even pleaded any circumstances justifying the
delay or their conduct, the High Court was in error in
granting a writ of certiorari in their favour."
6.9. The conspectus of above legal perspective manifestly
illustrating the concept of delay and laches juxtaposed
with the material projected in the case at hand that
approach by way of application has been made after a
gap of about 11 months from the date of impugned order
without ascribing any reason therefor, leads this Court
to opine that because of the inordinate delay and laches,
and the non-disclosure of circumstance to by-pass the
alternative remedy available under the statute do not
warrant exercise discretion in favour of the petitioner by
issue of writ.
7. Another aspect which requires to be taken note of is
that, the prayers of the petitioner run as follows:
"Under the aforesaid circumstances it is prayed therefore
that this Hon'ble Court may be graciously pleased to:-
a. Admit the writ petition;
b. Issue Rule nisi calling upon the opposite parties as
to why Notification dt.31.03.2023 vide Annexure-6
and 28.12.2023 vide Annexure-7 extending the time
limit to pass Order under Sub-Section 10 of Section
73 of the OGST/CGST Act, 2017 is in clear
transgression power available U/s. 168 r/w Section
73 (10) of the OGST/CGST Act, 2017, therefore the
said impugned Notification are illegal, arbitrary,
without jurisdiction and is liable to be quashed.
c. Issue Rule nisi calling upon the opposite parties as
to why show cause notice dated 18.05.2024 and the
impugned order dated 21.08.2024 issued by the
opposite party No.2 vide Annexure-3 & 4 without
considering the reply of the petitioner under
Annexure-2 shall not be quashed;
d. If the opposite parties fails to show cause or show
insufficient cause, make the rule absolute;
e. Issue necessary directions directing opposite parties
to pass reasoned order afresh on merits after giving
opportunity of hearing to the petitioner in accordance
with law;
f. Direct the opposite parties to open the portal
permitting the petitioner to revise/amend the GSTR 1
for the year 2019-2020;
g. To pass such further order/orders, direetion/
directions, writ/writs as may be deemed fit and
proper in the circumstances of the case;
And for the act of kindness the petitioner shall as in duty
bound and ever pray."
7.1. In a case where assessment order was challenged, the
High Court quashed the same invoking writ jurisdiction;
however, the Hon'ble Supreme Court in the matter of
Commissioner of Income Tax Vrs. Chhabil Dass Agarwal,
(2014) 1 SCC 603 = 2013 SCC OnLine SC 717 = (2013)
357 ITR 357 (SC) reiterated the scope and purport of
exercise of power under Article 226 of the Constitution of
India and re-stated the self-imposed restrictions qua
entertainment of writ petition:
"12. The Constitution Benches of this Court in K.S. Rashid
and Son Vrs. Income Tax Investigation Commission,
AIR 1954 SC 207, Sangram Singh Vrs. Election
Tribunal, AIR 1955 SC 425, Union of India Vrs. T.R.
Varma, AIR 1957 SC 882, State of U.P. Vrs. Mohd.
Nooh, AIR 1958 SC 86 and K.S. Venkataraman and
Co. (P) Ltd. Vrs. State of Madras, AIR 1966 SC 1089
have held that though Article 226 confers very wide
powers in the matter of issuing writs on the High
Court, the remedy of writ is absolutely discretionary
in character. If the High Court is satisfied that
the aggrieved party can have an adequate or
suitable relief elsewhere, it can refuse to
exercise its jurisdiction. The Court, in
extraordinary circumstances, may exercise the
power if it comes to the conclusion that there
has been a breach of the principles of natural
justice or the procedure required for decision
has not been adopted. [See N.T. Veluswami Thevar
Vrs. G. Raja Nainar, AIR 1959 SC 422, Municipal
Council, Khurai Vrs. Kamal Kumar, AIR 1965 SC
1321 = (1965) 2 SCR 653, Siliguri Municipality Vrs.
Amalendu Das, (1984) 2 SCC 436, S.T. Muthusami
Vrs. K. Natarajan, (1988) 1 SCC 572, Rajasthan
SRTC Vrs. Krishna Kant, (1995) 5 SCC 75, Kerala
SEB Vrs. Kurien E. Kalathil, (2000) 6 SCC 293, A.
Venkatasubbiah Naidu Vrs. S. Chellappan, (2000) 7
SCC 695, L.L. Sudhakar Reddy Vrs. State of A.P.,
(2001) 6 SCC 634, Shri Sant Sadguru Janardan
Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak
Sanstha Vrs. State of Maharashtra, (2001) 8 SCC
509, Pratap Singh Vrs. State of Haryana, (2002) 7
SCC 484 and GKN Driveshafts (India) Ltd. Vrs. ITO,
(2003) 1 SCC 72.]
***
15. Thus, while it can be said that this Court has
recognised some exceptions to the rule of
alternative remedy i.e. where the statutory
authority has not acted in accordance with the
provisions of the enactment in question, or in
defiance of the fundamental principles of
judicial procedure, or has resorted to invoke
the provisions which are repealed, or when an
order has been passed in total violation of the
principles of natural justice, the proposition laid
down in Thansingh Nathmal case, AIR 1964 SC
1419, Titaghur Paper Mills Co. Ltd. Vrs. State of
Orissa, (1983) 2 SCC 433 and other similar
judgments that the High Court will not entertain a
petition under Article 226 of the Constitution if an
effective alternative remedy is available to the
aggrieved person or the statute under which the
action complained of has been taken itself contains a
mechanism for redressal of grievance still holds the
field. Therefore, when a statutory forum is created
by law for redressal of grievances, a writ petition
should not be entertained ignoring the statutory
dispensation."
7.2. Applying the parameters laid down by the Hon'ble
Supreme Court of India for invoking discretionary writ
jurisdiction to the instant fact-situation as enumerated
by the petitioner along with prayers made in the writ
petition would make it clear that no case is made out so
as to entertain this writ petition.
8. This Court having come to the conclusion that the case
of the petitioner cannot stand on the ground of principle
of delay and laches, and in view of illustrative tenet
handed out by the Hon'ble Supreme Court of India in
Godrej Sara Lee Ltd. Vrs. Excise and Taxation Officer-
cum-Assessing Authority, (2023) 3 SCR 871, the issues
raised in the writ petition, if it is so advised, can be
agitated before the competent authority vested with
power to adjudicate the factual disputes under the GST
Act and Rules framed thereunder.
9. In the aforesaid premises, this Court has no option but
to dismiss the writ petition and, also all the pending
Interlocutory Applications, if any.
(HARISH TANDON)
CHIEF JUSTICE
(MURAHARI SRI RAMAN)
JUDGE
Signed by: LAXMIKANT MOHAPATRA
Designation: Senior Stenographer
Reason: Authentication
Location: High CourtHigh Court
of Orissa, of Orissa, Cuttack
Cuttack
The 13th August, 2025//MRS/Laxmikant
Date: 14-Aug-2025 14:45:24
