M/S Shivam Enterprises vs The State Of Bihar
2023 Latest Caselaw 2467 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.4298 of 2023
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M/s Shivam Enterprises through Proprietor Jai Prakash Gupta (Male), aged about 52 years, S/o Sri Gurucharan Sah, resident of Village-Sidhuli, New Sidhuli Road, P.S.-Dalmia Nagar, District-Rohtas (Bihar)

... ... Petitioner/s Versus

1. The State of Bihar through the State Tax Commissioner of Commercial Taxes Bihar, Patna.

2. State Tax Commissioner of Commercial Taxes, Bihar Vikash Bhawan, Patna-800001.

3. The Assistant Commissioner State Taxes, Sasaram Circle Sasaram, Distt-

Rohtas.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Alok Kumar, Advocate Mr. Samir Kumar Sinha, Advocate Mr. Sachida Nand Kishore Pd. Sinha, Advocate For the Respondent/s : Mr.Vivek Prasad (GP-7) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 17-05-2023

The above writ application under Article 226 of the

Constitution of India challenges an assessment order dated

22.07.2021. The petitioner, an assessee under the Bihar Goods

and Services Tax Act, 2017 (for brevity "BGST Act") admits

that he received a show-cause notice regarding an excess Input

Tax Credit (ITC) claim, after scrutiny of his return for the

Assessment Year 2019-20. The petitioner preferred an

explanation which was rejected and an assessment order passed Patna High Court CWJC No.4298 of 2023 dt.17-05-2023

at Annexure-I dated 22.07.2021. The petitioner seeks to

challenge the rejection of the objection filed and also the

demand raised pursuant to the assessment order with interest in

the above writ petition under Article 226.

At the outset, it is to be noticed that the claim is

grossly delayed, the writ petition being of the year 2023 while

the assessment itself was completed in the year 2021.

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

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 Patna High Court CWJC No.4298 of 2023 dt.17-05-2023

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 to

adhere to principles of natural justice and 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.

The claim of Input Tax Credit and the

computation thereon ought to have been agitated before the

appellate authority. 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,

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 Patna High Court CWJC No.4298 of 2023 dt.17-05-2023

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 petitioner seeks to challenge the

demand on the ground that the Input Tax Credit claim made by

the petitioner is proper; which is merely the determination of the

tax payable on the basis of the various claims validly arising

from the statute and computation; which cannot be agitated in a

petition under Article 226 of the Constitution of India. The gross

delay also stands against the petitioner.

As such, the writ petition would stand dismissed.

(K. Vinod Chandran, CJ)

(Madhuresh Prasad, J) P.K.P./Anushka AFR/NAFR CAV DATE Uploading Date 19.05.2023 Transmission Date