Patna High Court
Madan Kumar vs The State Of Bihar on 17 July, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2377 of 2023
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Madan Kumar, Son of Rajdeo Roy, a proprietor/Civil Contractor having its
place of Business at Ladugarh, Janakinagar, Purnea, Bihar- 854302, Resident
of At- Ladugarh, Jankinagar, Police Station- Janki Nagar, District- Purnea,
Bihar- 854302
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary-cum-Commissioner,
Department of State Taxes, Government of Bihar, Patna.
2. The Additional Commissioner of State Taxes (Appeal), Purnea Division,
Bihar.
3. The Joint Commissioner of State Taxes, Purnea Circle, Bihar.
... ... Respondent/s
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Appearance :
For the Petitioner/s : None
For the Respondent/s : Mr.Vikash Kumar (SC-11)
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 17-07-2023
Today when the matter was called in the morning,
there was no representation on behalf of the petitioner and even
when the matter was called for hearing later, none is present on
behalf of the petitioner.
In the present case, the assessment order was dated
13.02.2020 and the appeal was filed only on 22.08.2022.
The Hon'ble Supreme Court in Suo Motu Writ
Petition (C) No. 3 of 2020, In Re: Cognizance For Extension of
Limitation due to the pandemic situation, limitation was saved
Patna High Court CWJC No.2377 of 2023 dt.17-07-2023
between 15.03.2020 till 28.02.2022. It was also directed that an
appeal could be filed within ninety days from 01.03.2022.
Hence, an appeal could have been filed on or before
29.05.2022, which provision was not availed by the petitioner
herein. The Hon'ble Supreme Court also declared that if a
longer period than 90 days is provided in a Statute, then that
longer period will apply. In the BGST Act, u/s 107(4) there is a
provision for condonation of delay, if the appeal is filed
delayed, within one month of expiry of limitation. Even if that
be deemed to be appealable then the appeal ought to have been
filed by 28.06.2022. The appeal is said to have been filed only
on 22.08.2022, after about two months from the date on which
even the limitation period as stipulated by the Hon'ble Supreme
Court, expired.
We also notice the contours of the jurisdiction under
Article 226 of the Constitution of India to interfere with
appellable orders laid down by the Hon'ble Supreme Court in
State of H.P & Ors. v. Gujarat Ambuja Cement Limited &
Anr.; (2005) 6 SCC 499. It has been held that if an assessee
approaches the High Court without availing the alternate
remedy, it should be ensured that the assessee has made out a
strong case or that there exists good grounds to invoke the
Patna High Court CWJC No.2377 of 2023 dt.17-07-2023
extraordinary jurisdiction. While reiterating that Article 226 of
the Constitution confers very wide powers on the High Court, it
was clarified that nonetheless the remedy of writ is an
absolutely discretionary remedy. The High Court, hence, can
always refuse the exercise of discretion if there is an adequate
and effective remedy elsewhere. The High Court can exercise
the power only if it comes to the conclusion that there has been
a breach of principles of natural justice or due procedure
required for the decision has not been adopted. The High Court
would also interfere if it comes to a conclusion that there is
infringement of fundamental rights or where there is failure of
principles of natural justice or where the orders and proceeding
are wholly without jurisdiction or when the vires of an Act is
challenged. There is no such plea made by the petitioner in the
present case against the impugned order.
Having not availed the statutory remedies
available, the petitioner cannot seek to approach this Court
under Article 226 of the Constitution of India to challenge an
assessment order especially with respect to the computation of
the turn over and the determination of the taxable turnover and
the tax payable, as arrived at by the Assessing Officer. In the
BGST Act, an appellate remedy is provided under Section 107,
Patna High Court CWJC No.2377 of 2023 dt.17-07-2023
which has to be availed within a period of three months or with
a delay within a further period of one month.
It is trite law that when there is a specific period for
delay condonation provided, there cannot be any extension of
the said period by the Appellate Authority or by this Court under
Article 226 of the Constitution.
The petitioner by his own failure has not availed
the appellate remedy and in that circumstance, there can be no
invocation of the extraordinary jurisdiction under Article 226 of
the Constitution of India. We also find that there is no
jurisdictional error, violation of principles of natural justice or
abuse of process of Court averred or argued by the petitioner in
the above writ petition. The gross delay also stands against the
petitioner.
As such, the writ petition would stand dismissed.
(K. Vinod Chandran, CJ)
(Partha Sarthy, J)
Anushka/-
AFR/NAFR
CAV DATE
Uploading Date 19.07.2023
Transmission Date
