M/S Bhagwati Construction vs Union Of India
2023 Latest Caselaw 2491 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.7411 of 2023
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M/s Bhagwati Construction, through its Partner Munna Yadav, aged about 47, Years, (Male), Son of Deva Yadav, resident of 891, Road No.7 Magadh Colony, Gaya P.S.-Chandauti, District-Gaya.

... ... Petitioner/s Versus

1. Union of India through its Principal Secretary, Department of Finance (Revenue).

2. Principal Director General of Central Tax, New Delhi

3. Chief Commissioenr of Central Tax, New Delhi

4. State of Bihar through its Principal Secretary, Department of Finance (Revenue)

5. The Commissioner Sale Tax, Bihar, Patna.

6. Additional Commissioner, Appeal Sale Tax, Magadh Division, Gaya.

7. Assistant Commissioner of State Tax, Jurisdiction, Gaya Magadh. Bihar.

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

For the Petitioner/s : Mr. Sanjeev Kumar, Advocate For the Respondent/s : Mr.Additional Solicitor General ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 18-05-2023

The challenge in the above case is against the

assessment order dated 05.03.2020. Admittedly, a show cause

notice was issued on 07.02.2020, produced as Annexure-1 at page

15 of the memorandum. Obviously, no response was made to the

notice issued and the Assessing Officer passed an order on

05.03.2020, which is produced as Annexure-2 at page 18. The

petitioner did nothing to challenge the said order nor was the taxes Patna High Court CWJC No.7411 of 2023 dt.18-05-2023

paid in accordance with the order passed in the year 2023 by

Annexure-3 dated 22.02.2023. The Assessing Officer issued a

notice under Section 79(1)(c) of the Bihar Goods and Services Tax

Act, 2017 to the various banks to hold the amount demanded, if

the same remains in the account of the petitioner. It was then that

the petitioner approached the Appellate Authority by an appeal

dated 11.03.2022. The appeal stood dismissed as per the order

produced as Annexure-4.

The writ petition is filed against the appellate order

dated 14.03.2023 (Annexure-4 Series) which was rejected on the

ground of delay. The appeal was filed against Annexure-2 order

dated 05.03.2020.

Section 107 of the Bihar Goods and Services Tax

Act, 2017 ("BGST Act" hereafter) which permits an appeal to be

filed within three months and also apply for delay condonation

with satisfactory reasons within a further period of one month. The

Hon'ble Supreme Court in Suo Motu Writ Petition ( C) No. 3 of

2020, In Re: Cognizance For Extension of 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 Patna High Court CWJC No.7411 of 2023 dt.18-05-2023

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 11.03.2023, after 257 days from the date on which even

the limitation period as stipulated by the Hon'ble Supreme Court,

expired.

In the above circumstances, we find no reason to

invoke the extraordinary jurisdiction under Article 226, especially

since it is not a measure to be employed where there are alternate

remedies available and the assessee has not been diligent in

availing such alternate remedies within the stipulated time.

The writ petition is dismissed.

(K. Vinod Chandran, CJ)

( Madhuresh Prasad, J) sharun/-

AFR/NAFR                NAFR
CAV DATE                N/A
Uploading Date          19.05.2023
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