Patna High Court
Prashant Luthra, Director, Brite Neon ... vs State Of Bihar on 14 December, 2023
Bench: Chief Justice, Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3133 of 2023
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Prashant Luthra, Director, Brite Neon Signs Pvt. Ltd., 2nd Floor, Kashi Place
Dak Bunglow Road, Patna-80001, S/o- Sri Virinder Kumar Luthra, Male
(aged about 42), resident of 14 Birch Sreet Malibu Town, Sohna Road, P.O.-
South City - II, P.S.- Sadar, Gurgaon, Haryana- 122018.
... ... Petitioner/s
Versus
1. State of Bihar Through Commissioner of State Tax, Patna, Bihar having its
Office at Vikas Bhawan, Patna.
2. Deputy Commissioner of State Tax, Patna West Circle, Patna.
3. Joint Commissioner of State Tax, Patna West Circle, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mrs. Manju Jha, Advocate
For the Respondent/s : Mr. Vikash Kumar (SC 11)
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJIV ROY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 14-12-2023
Petitioner has approached this Court for quashing of
an order dated 08.12.2021 passed under Section 73(9) of the
Bihar Goods and Services Tax Act, 2017 (for brevity 'BGST
Act'). There was an appeal provided under the BGST Act'. As
Patna High Court CWJC No.3133 of 2023 dt.14-12-2023
2/5
per Section 107(4), an appeal would be maintainable within
three months of the order or with a delay condonation
application within a further period of one month. No such
appeal has been filed. The writ petition is itself delayed for
almost one year.
2. This Court and the Hon'ble Supreme Court have
held that when there is a specific period provided in the statute,
within which period a delayed appeal could be filed; then
neither the Appellate Authority nor this Court under Article 226
of the Constitution of India could condone the delay beyond the
period provided.
3. The Central Board of Indirect Taxes and Customs
has by Notification No. 53 of 2023- Central Tax, dated
02.11.2023
(S.O. 4767(E)) extended the time for filing appeal
against an order passed by the Proper Officer on or before
31.03.2023 under Sections 73 and 74 of the 'BGST Act'. This in
fact extends the period for filing a delayed appeal beyond the
one month period as provided under Section 107(4) of the
'BGST Act', on following the special procedure prescribed
under the said Notification.
4. The special procedure prescribed under the
Notification is seen from paragraph no. 2 to 6 which are
Patna High Court CWJC No.3133 of 2023 dt.14-12-2023
extracted hereunder:-
"2. The said person shall file an appeal
against the said order in FORM GST APL-01 in
accordance with sub-section (1) of Section 107 of
the said Act, on or before 31st day of January 2024:
Provided that an appeal against the
said order filed in accordance with the provisions
of section 107 of the said Act, and pending before
the Appellate Authority before the issuance of this
notification, shall be deemed to have been filed in
accordance with this notification, if it fulfills the
condition specified at para 3 below.
3. No appeal shall be filed under this
notification, unless the appellant has paid-
(a) in full, such part of the amount of
tax, interest, fine, fee and penalty arising from the
impugned order, as is admitted by him; and
(b) a sum equal to twelve and a half
per cent of the remaining amount of tax in dispute
arising from the said order, subject to a maximum
of twenty-five crore rupees, in relation to which the
appeal has been filed, out of which at least twenty
percent should have been paid by debiting from the
Electronic Cash Ledger.
4. No refund shall be granted on
account of this notification till the disposal of the
appeal, in respect of any amount paid by the
appellant, either on their own or on the directions
of any authority (or) court, in excess of the amount
specified in para 3 of this notification before the
issuance of this notification, for filing an appeal
under sub- section (1) of Section 107 of the said
Act.
5. No appeal under this notification
shall be admissible in respect of a demand not
involving tax.
6. The provisions of Chapter XIII of
the Central Goods and Service Tax Rules, 2017 (12
Patna High Court CWJC No.3133 of 2023 dt.14-12-2023
of 2017), shall mutatis mutandis, apply to an appeal
filed under this notification."
5. Hence an appeal against an order under Section 73
or 74 has to be filed on or before 31.01.2024, and any appeal
filed which is pending before the authority could also be
considered as properly filed, even if there is delay in such filing.
6. However, the maintainability of the appeal is
further regulated by paragraph no. 3 which require that the
admitted tax, interest, fine, fee and penalty arising from the
impugned order is paid up along with a sum equal to 12.5% of
the remaining amount of tax in dispute arising from the said
order subject to a maximum of twenty-five crore rupees; out of
which 12.5%, 20% should have been paid by debiting from the
Electronic Cash Ledger. The further conditions in paragraph no.
4 to 6 also shall be applicable.
7. In the present case, the appeal was not filed. In such
circumstances, it is only proper that an appeal be filed
satisfying the conditions in paragraph no. 3.
8. Hence the petitioner would be entitled to satisfy
paragraph no. 3 of the aforesaid Notification by paying up the
amount as would be required to maintain the appeal under the
notification.
9. Let an appeal against the impugned order dated
Patna High Court CWJC No.3133 of 2023 dt.14-12-2023
08.12.2021 be filed satisfying the aforesaid conditions before
the time stipulated in Notification; i.e. 31.01.2024, in which
event, the appeal would be taken up and considered on merits.
10. We dispose of the writ petition on the above terms.
(K. Vinod Chandran, CJ)
(Rajiv Roy, J)
Sunil/-
AFR/NAFR
CAV DATE
Uploading Date 14.12.2023
Transmission Date
