Patna High Court
M/S Ravi Kumar Jaiswal (A Sole Partner ... vs The Union Of India on 1 August, 2024
Bench: Chief Justice, Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2430 of 2024
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M/s Ravi Kumar Jaiswal (a Sole partner firm) having it registered office
Rajbag Pupri, Sitamarhi through its Authorized Signatory Mr. Kishan Jaiswal,
aged about 32 years (M), S/o Kameshwar Prasad Jaiswal.
... ... Petitioner/s
Versus
1. The Union of India through the Secretary, Ministry of Finance, Department
of Revenue, having its Office at Room No. 46, North Block, P.O. and P.S.
North Block, New Delhi - 110001.
2. The Chief Commissioner, CGST and CX, Office at - C.R. Building, 1st
Floor, Bir Chand Patel Path, Patna, Bihar.
3. The State of Bihar through Commissioner, BGST, New Secretariat Patna.
4. Joint Commissioner of State Tax, Sitamarhi Circle, District - Sitamarhi,
Bihar.
5. Assistant Commissioner of State Tax, Sitamarhi Circle, Sitamarhi.
6. Additional Commissioner of State Tax (Appeal), Tirhut Division,
Muzaffarpur.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 2476 of 2024
======================================================
M/s Ravi Kumar Jaiswal (a Sole Partner Firm) having it registered office
Rajbag Pupri, Sitamarhi through its Authorized Signatory Mr. Kishan Jaiswa,
aged about 32 years (M), S/o Kameshwar Prasad Jaiswal.
... ... Petitioner/s
Versus
1. The Union of India through the Secretary, Ministry of Finance, Department
of Revenue, having its office at Room No. 46, North Block, P.O. and P.S.
North Block, New Delhi-110001.
2. The Chief Commissioner, CGST and CX, Office at C.R. Building, 1st Floor,
Bir Chand Patel Path, Patna, Bihar.
3. The State of Bihar through Commissioner, BGST, New Secretariat, Patna.
4. Joint Commissioner of State Tax, Sitamarhi Circle, District-Sitamarhi, Bihar.
5. Assistant Commissioner of State Tax, Sitamarhi Circle, Sitamarhi.
6. Additional Commissioner of State Tax (Appeal), Tirhut Division,
Muzaffarpur.
... ... Respondent/s
======================================================
Patna High Court CWJC No.2430 of 2024 dt.01-08-2024
2/5
Appearance :
(In Civil Writ Jurisdiction Case No. 2430 of 2024)
For the Petitioner/s : Mr.Anurag Saurav, Advocate
Mr. Abhinav Alok, Advocate
Mr. Abhishek Kumar, Advocate
Ms. Prity Kumari, Advocate
Mr. Sharda Raje Singh, Advocate
For the Respondent/s : Dr. K.N.Singh, ASG
Mr.Anshuman Singh, Sr. SC, CGST & CX
Mr. Shivaditya Singh, Advocate
For the State : Mr. Vivek Prasad, GP-7
(In Civil Writ Jurisdiction Case No. 2476 of 2024)
For the Petitioner/s : Mr.Anurag Saurav, Advocate
Mr. Abhinav Alok, Advocate
Mr. Abhishek Kumar, Advocate
Ms. Prity Kumari, Advocate
Mr. Sharda Raje Singh, Advocate
For the Respondent/s : Dr. K.N.Singh, ASG
Mr.Anshuman Singh, Sr. SC, CGST & CX
Mr. Shivaditya Singh, Advocate
For the State : Mr. Vivek Prasad, GP-7
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 01-08-2024
The subject matter of the above writ petitions are the
assessment years 2018-19 and 2019-2020. The dates of the
orders passed are common and so is the issue agitated before us.
Hence, we pass a common order.
2. The petitioner is aggrieved with the dismissal of the
two appeals for the respective years, on the ground that the
entire demand has been satisfied by the appellant assessee and
hence there is no requirement for an appeal.
3. The learned Counsel for the petitioner submitted
that in fact, it was a recovery made after the respondent
Patna High Court CWJC No.2430 of 2024 dt.01-08-2024
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authorities took coercive steps.
4. The respondents have filed a supplementary
affidavit dated 30.07.2024, in which it has been categorically
stated that the demands were created on 13.03.2020 and since
there was no appeal filed till 10.08.2022, the respondents had
taken up coercive steps and recovered the entire demand.
5. We are of the opinion that even if the petitioner
had voluntarily paid up the amounts, there would be no waiver
of the right of appeal. In fact, the Appellate Authority should
have taken up the matter, since the petitioner has paid up the
demand and then challenged the order. In any event, as of now,
in the present case, the petitioner had not paid up the money
voluntarily and recovery was made after the respondents
initiated coercive steps.
6. The impugned order in the appeal, which led to the
demand was dated 13.03.2020. The Hon'ble Supreme Court in
Suo Motu Writ Petition (C) No. 3 of 2020, In Re: Cognizance
For Extension of Limitation, had extended the limitation
regarding proceedings to be initiated against the orders passed
between 15.03.2020 to 28.02.2022 for three months and also
provided that if the statute provides for a further period, that
could also be availed. The present order was passed on
Patna High Court CWJC No.2430 of 2024 dt.01-08-2024
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13.03.2020
and the limitation would expire during the period,
when the Hon'ble Supreme Court suspended limitation. But the
appeal filed on 10.08.2022 is beyond the period provided by the
Hon'ble Supreme Court .
7. We also notice that by Circular No. 53 of 2023, the
Central Board of Indirect Taxes & Customs had allowed appeals
to be filed insofar as proceedings taken under Section 73 or 74
against orders passed prior to 31.03.2023; if 12.5% of the tax in
dispute is paid up; the 2.5% being required to be paid up in the
cash ledger and the appeals were to be filed before 31.01.2024.
8. In the present case, the appeal stood dismissed on
19.09.2023, after which Circular No. 53 of 2023 was issued.
Considering the fact that the entire demand was satisfied, we
would think that the Circular has to be applied in the case of the
present appeal also and there would be no requirement for the
petitioner to again file an appeal before 31.03.2024. We also
notice that the appeal has been dismissed not on the question of
delay nor on merits and the rejection was only on account of
satisfaction of the demand, which cannot be sustained.
9. On the above reasoning, we set aside the appellate
order dated 19.09.2023 and restore the appeal to the files of the
First Appellate Authority. The appeal shall be considered on
Patna High Court CWJC No.2430 of 2024 dt.01-08-2024
merits. If at all, any modification is made, the assessee would be
entitled to refund of the amounts recovered.
10. The writ petitions stand disposed of.
(K. Vinod Chandran, CJ)
( Partha Sarthy, J)
Sujit/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 06.08.2024
Transmission Date NA
