Badri Prasad Yadav vs The State Of Bihar
2023 Latest Caselaw 2473 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.3021 of 2023
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Badri Prasad Yadav Son of Sukhdev Prasad Yadav, resident of Ward No. - 23, P.S. - Saharsha, P.O. and Dist. - Saharsha.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary cum Commissioner, Department of Commercial Taxes, Govt. of Bihar, Patna.

2. The Additional Commissioner of State Taxes, Saharsa Circle, Saharsa.

3. The Assistant Commissioner of State Taxes Patliputra Circle, Saharsa.

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

For the Petitioner/s : Mr. Shailesh Anand, 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 : 18-05-2023

The petitioner in the writ petition is aggrieved with

the dismissal of the appeal by an order dated 21.09.2022, which

dismissal was on account of the delay in filing the same.

Admittedly, a show-cause notice was issued under Section 73 of

the Bihar Goods and Services Tax Act-2017 (hereinafter referred

to as BGST Act) on 08.11.2021, pursuant to which an order was

passed on 27.12.2021, which is produced as Annexure-P/2. On

the same day on which the order was issued a demand notice

was also issued, which is produced as Annexure-P/1 and appeal

against the order dated 27.12.2021 was filed on 02.09.2022 and Patna High Court CWJC No.3021 of 2023 dt.18-05-2023

the same stood dismissed by order dated 21.09.2022, produced

as Annexure-P/4. The petitioner in the writ petition admitted in

paragraph no. 6 that in the assessment year 2020-21, there arose

wrongful claim of input tax credit by the petitioner, since the

supplier had not paid the tax in question to the department.

The scope of the litigation was sought to be

expanded by a Interlocutory Application filed against a demand

issued by the tax officer for the very same period based on the

order dated 27.12.2021, which are produced as Annexure- P/4

and P/5. The petitioner also placed reliance on the judgment of

this Court in C.W.J.C. No. 2125 of 2019.

At the outset, it has to be noticed that C.W.J.C. No.

2125 of 2019 was with respect to the transitional credit claimed

by the dealer for the assessment years 2007-08 and 2011-12,

which were the assessment years regulated by the Value Added

Tax Act. The issue arising was also with respect to whether the

transitional credit claimed by the dealer in the credit ledger

could be treated as an availment of credit, without any other

positive act, resulting in the proceedings under section 73 of the

Act.

We do not find any such issue of transitional credit

arising from the above case and the contention is only of input Patna High Court CWJC No.3021 of 2023 dt.18-05-2023

tax claimed, wrongly.

The counter affidavit of the respondent also

specifically speaks of a distinction insofar as the judgment

relied on being purely on transitional credit, which issue does

not at all arise in the present proceedings. The counter affidavit

specifically points out that the admission of the petitioner

regarding non-payment of tax by the supplier stands against the

specific mandate under Section 16(2), of a registered entity not

entitled to the credit of input tax, if the tax charged in respect of

such supply has not been actually paid to the government either

by way of cash or through utilization of Input Tax Credit

admissible in respect of the said supply. We are convinced that

the judgment relied on has no application and that in such

circumstances, the only question is as to whether the

determination of the taxable amount by reason of disallowance

of input tax claimed, as made by the Assessing Officer, ought to

be considered in a writ petition under Article 226 of the

Constitution of India.

In the present case, the assessment order was dated

27.12.2021 and the appeal was filed only on 02.09.2022.

The Hon'ble Supreme Court in Suo Motu Writ

Petition (C) No. 3 of 2020, In Re: Cognizance For Extension of Patna High Court CWJC No.3021 of 2023 dt.18-05-2023

Limitation. Therein, due to the pandemic situation limitation

was saved 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 02.09.2022, after 65 days 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 Patna High Court CWJC No.3021 of 2023 dt.18-05-2023

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

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.

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 Patna High Court CWJC No.3021 of 2023 dt.18-05-2023

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 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 stands against the petitioner.

Patna High Court CWJC No.3021 of 2023 dt.18-05-2023

As such, the writ petition would stand dismissed.

(K. Vinod Chandran, CJ)

( Madhuresh Prasad, J) aditya/-

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Uploading Date          20.05.2023.
Transmission Date