Rajasthan High Court
Ashok Varandani vs Central Board Of Indirect Taxes And ... on 1 March, 2024
Bench: Manindra Mohan Shrivastava, Bhuwan Goyal
[2024:RJ-JP:11200-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 2430/2024
Ashok Varandani, Proprietor Of M/s Kamaldeep Printers, Having
Its Principal Place Of Business Office At S-5, Sardar Patel Marg,
C-Scheme, Jaipur, Rajasthan, 302005.
----Petitioner
Versus
1. Central Board Of Indirect Taxes And Customs, Through
The Chairman, North Block, New Delhi-311001
2. The Commissioner Of Commercial Taxes, Kar Bhawan,
Ambedkar Circle, Jaipur-302005 (Rajasthan)
3. The Assistant Commissioner, Circle-I, Jaipur-I, Ward-Ii,
Commercial Taxes Department, Jhalana Institutional Area,
Jaipur-302004 (Rajasthan)
4. Union Of India, Through Its Secretary (Revenue), Ministry
Of Finance, Department Of Revenue, Government Of
India, North Block, New Delhi-110001
5. State Of Rajasthan, Through Finance Secretary
(Revenue), Finance Department, Government Of
Rajasthan, 1 St Floor, Main Building, Government
Secretariat, Janpath, Jaipur - 302005
----Respondents
For Petitioner(s) : Mr. Anurag Kalavatiya
For Respondent(s) : Mr. Kinshuk Jain with Mr. Jai
Upadhyay & Mr. Sourabh Jain
HON'BLE THE CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE BHUWAN GOYAL
Order
01/03/2024
1. Heard on admission.
2. By this writ petition filed under Article 226 of the Constitution
of India, the petitioner has assailed an ex-parte assessment order
dated 15.05.2023 passed by the third respondent, namely, the
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Assistant Commissioner, Circle-I, Jaipur I Ward-II, Commercial
Taxes Department, Jaipur. The petitioner has sought declaration
that his statutory return in Form GSTR-3B for the month of March,
2023 is valid and the declaration made therein by the petitioner
holds primacy over the determination of liability in best judgment
assessment. A prayer has also been made to de-attach the bank
account of the petitioner. The petitioner has also prayed for
declaration that Section 16(2), 39 read with Sections 46 & 47 of
the GST Act permit filing of a monthly return after the due date.
3. Learned counsel for the petitioner contended that due to
financial constraint the petitioner could not file his return under
Section 39 in Form GSTR-3B for the period of March, 2023, due to
which a notice under Section 46 of the Rajasthan Goods &
Services Tax Act, 2017 (for short, "RGST Act, 2017"), was issued
to him requiring him to file Form GSTR-3B for the period of March,
2023 within 15 days. It is further submitted that financial
constraint continued and return could not be filed within the
stipulated period. Thereafter, the third respondent proceeded with
best judgment assessment under Section 62 of the RGST Act,
2017, it being assessment for non-filers of return, the petitioner,
though belatedly, filed his return under Section 39 in Form GSTR-
3B for the period of March, 2023 on 04.10.2023 on the basis of
self assessment of tax. The petitioner carried notion and
impression that since he had filed return under Section 39, though
belatedly, the best judgment assessment would be withdrawn.
Because of such an impression, the petitioner did not take
recourse to remedy of appeal and when recovery notice was
issued against him, his bank accounts were attached. As the best
[2024:RJ-JP:11200-DB] (3 of 9) [CW-2430/2024]
judgment assessment is without collecting necessary information
and without affording any opportunity of hearing, and the
petitioner under wrong notion of fact and law could not avail the
statutory remedy of appeal, the present writ petition has been
filed.
4. Though several contentions based on merits of the case,
particularly that the determination of tax under best judgment
assessment is not in accord with the return filed by the petitioner,
we find that the petitioner, right from the beginning, has been a
defaulter. Firstly, he did not file his return under Section 39 in
Form GSTR-3B for the period of March, 2023, even though he was
served with a notice under Section 46 of the RGST Act, 2017
requiring him to file his return in the Form GSTR-3B for March,
2023 within 15 days. The petitioner again remained negligent and
did not care to file his return within a period of 15 days as per
notice dated 27.04.2023. In such circumstances, the Assessing
Authority was left with no option but to proceed to make best
judgment assessment, as provided under Section 62 of the RGST
Act, 2017.
5. It is not the case of the petitioner that the best judgment
assessment was not known to him. Though he had an efficacious
statutory remedy of filing an appeal even against the best
judgment assessment on grounds available to him under the law,
the petitioner again did not avail his alternative remedy of appeal
against the best judgment assessment. Not only the entire period
of limitation was allowed to expire, but even the extended period
within which the appeal could be filed alongwith an application for
condonation of delay, also expired and the petitioner filed this
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petition as late as on 08.02.2024 assailing the assessment order.
Thus, the petitioner committed default at every stage. The
legislative scheme of the RGST Act, 2017 provided him a remedy
of appeal where he could have raised all the grounds, he chose to
remain indolent.
6. Learned counsel for the respondents, on advance copy,
rightly pointed out, by referring to the decision of Hon'ble
Supreme Court in the case of Assistant Commissioner (CT)
LTU, Kakinada & Ors. vs. Glaxo Smith Kline Consumer
Health Care Limited, reported in (2020) 19 SCC 681, that in
these circumstances, when the petitioner has not availed his
alternative remedy of statutory appeal either within the period of
limitation or even within the extended period of limitation by
seeking condonation of delay, this writ petition is not maintainable
and liable to be dismissed only on this ground.
7. In the case of Glaxo Smith Kline Consumer Health Care
Limited (supra), the question which arose for consideration was
whether the High Court in exercise of its writ jurisdiction under
Article 226 of the Constitution of India, ought to entertain a
challenge to the assessment order on the sole ground that the
statutory remedy of appeal against that order stood foreclosed by
law of limitation. On facts, that was a case where the assessee did
not take recourse to remedy of appeal even though he was duly
served with the order of assessment within the statutory period.
Without challenging the order in appeal, respondent therein filed
an application under Rule 60 of the Andhra Pradesh Value Added
Tax Rules, 2005, highlighting certain errors in raising the demand
based on incorrect turnover reported by the assessee. The
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application having been rejected, an appeal was filed. Finally, the
assessee filed an appeal before the Appellate Authority against the
assessment order. The appeal against the assessment order was
dismissed being barred by limitation and also because no sufficient
cause was made out. Thereafter, the assessee filed a writ petition
in the High Court seeking quashment and setting aside of
assessment order on various grounds including the ground that it
was contrary to law, without jurisdiction and in violation of
principles of natural justice. Prayer was also made to carry out
fresh assessment. The writ petition was allowed quashing and
setting aside the order of assessment relegating the matter for
reconsideration. That order came to be challenged by filing an
appeal, mainly on the ground that the assessee having failed to
avail the statutory remedy of appeal within the prescribed time
and the assessee having failed to satisfactorily explain the delay in
filing the appeal, the High Court ought not to have entertained the
writ petition at the instance of such person, more so because the
respondent had allowed the order passed by the Appellate
Authority rejecting the appeal on the ground of delay, to become
final.
8. After detailed consideration, the Hon'ble Supreme Court
arrived at the conclusion that in such circumstances, the writ
petition was not maintainable and was liable to be dismissed. It
was held thus:-
"22. Suffice it to observe that this decision is on
the facts of that case and cannot be cited as a
precedent in support of an argument that the High
Court is free to entertain the writ petition assailing
the assessment order even if filed beyond the
statutory period of maximum 60 days in filing appeal.
The remedy of appeal is creature of statute. If the
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appeal is presented by the assessee beyond the
extended statutory limitation period of 60 days in
terms of Section 31 of the 2005 Act and is, therefore,
not entertained, it is incomprehensible as to how it
would become a case of violation of fundamental
right, much less statutory or legal right as such.
23. Arguendo, reverting to the factual matrix of the
present case, it is noticed that the respondent had
asserted that it was not aware about the passing of
assessment order dated 21.6.2017 although it is
admitted that the same was served on the authorised
representative of the respondent on 22.6.2017. The
date on which the respondent became aware about
the order is not expressly stated either in the
application for condonation of delay filed before the
appellate authority, the affidavit filed in support of the
said application or for that matter, in the memo of
writ petition. On the other hand, it is seen that the
amount equivalent to 12.5% of the tax amount came
to be deposited on 12.9.2017 for and on behalf of
respondent, without filing an appeal and without any
demur - after the expiry of statutory period of
maximum 60 days, prescribed under Section 31 of
the 2005 Act. Not only that, the respondent filed a
formal application under Rule 60 of the 2005 Rules on
8.5.2018 and pursued the same in appeal, which was
rejected on 17.8.2018. Furthermore, the appeal in
question against the assessment order came to be
filed only on 24.9.2018 without disclosing the date on
which the respondent in fact became aware about the
existence of the assessment order dated 21.6.2017.
On the other hand, in the affidavit of Mr. Sreedhar
Routh, Site Director of the respondent company (filed
in support of the application for condonation of delay
before the appellate authority), it is stated that the
Company became aware about the irregularities
committed by its erring official (Mr. P. Sriram Murthy)
in the month of July, 2018, which presupposes that
the respondent must have become aware about the
assessment order, at least in July, 2018. In the same
affidavit, it is asserted that the respondent Company
was not aware about the assessment order, as it was
not brought to its notice by the employee concerned
due to his negligence. The respondent in the writ
petition has averred that the appeal was rejected by
the appellate authority on the ground that it had no
power to condone the delay beyond 30 days, when in
fact, the order examines the cause set out by the
respondent and concludes that the same was
unsubstantiated by the respondent. That finding has
not been examined by the High Court in the
impugned judgment and order at all, but the High
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Court was more impressed by the fact that the
respondent was in a position to offer some
explanation about the discrepancies in respect of the
volume of turnover and that the respondent had
already deposited 12.5% of the additional amount in
terms of the previous order passed by it. That reason
can have no bearing on the justification for non-filing
of the appeal within the statutory period. Notably, the
respondent had relied on the affidavit of the Site
Director and no affidavit of the concerned employee
(P. Sriram Murthy, Deputy Manager-Finance) or at
least the other employee [Siddhant Belgaonker,
Senior Manager (Finance)], who was associated with
the erring employee during the relevant period, has
been filed in support of the stand taken in the
application for condonation of delay. Pertinently, no
finding has been recorded by the High Court that it
was a case of violation of principles of natural justice
or non-compliance of statutory requirements in any
manner. Be that as it may, since the statutory period
specified for filing of appeal had expired long back in
August, 2017 itself and the appeal came to be filed by
the respondent only on 24.9.2018, without
substantiating the plea about inability to file appeal
within the prescribed time, no indulgence could be
shown to the respondent at all."
9. Having examined the issue with regard to maintainability of
the writ petition under Article 226 of the Constitution of India, it
was concluded as below:-
"25. Taking any view of the matter, therefore,
the High Court ought not to have entertained the
subject writ petition filed by the respondent herein.
The same deserved to be rejected at the threshold."
10. Present is a case where the petitioner did not even file the
appeal and allowed the order passed in assessment to become
final and then filed writ petition seeking to challenge the
determination through best judgment assessment, mainly on the
basis of incorrect determination of tax liability in the light of return
belatedly filed by the petitioner. Present is not a case where from
the date of notice, return was either filed within the prescribed
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period, or even within the extended period under notice given to
the petitioner. Even best judgment assessment was not challenged
by filing an appeal and period of filing of appeal was allowed to
expire. It was only thereafter that the writ petition was filed.
Having not preferred an appeal, the petition in the present case, in
view of the decision of Hon'ble Supreme Court in the case of
Glaxo Smith Kline Consumer Health Care Limited (supra), is
not maintainable. When the petitioner failed to file his return, even
a notice was issued to him to file return within 15 days. When no
return was filed and the petitioner remained persistent defaulter,
the Assessing Authority was left with no other option but to
proceed to make best judgment assessment under Section 62 of
the RGST Act, 2017. Therefore, the petitioner cannot complain of
violation of principles of natural justice. The challenge to the
determination under best judgment assessment, based mainly on
factual aspects to the extent of tax liability, is not sustainable in
view of the figure stated in the return which was filed by the
assessee. All these grounds, though available to be raised by
availing the remedy of appeal including extended period of
limitation seeking condonation of delay, the petitioner, for reasons
best known to him, did not avail the remedy.
11. Reliance placed by the learned counsel for the petitioner on
the decision of the Madras High Court in the case of Comfort
Shoe Components vs. Assistant Commissioner, Ambur
Vellore (W.P. Nos.34770, 34774 & 34777/2023) decided on
14.12.2023, is of no avail as in view of the decision of Hon'ble
Supreme Court in Glaxo Smith Kline Consumer Health Care
Limited (supra), present petition is not maintainable.
[2024:RJ-JP:11200-DB] (9 of 9) [CW-2430/2024]
12. Therefore, in view of the decision of Hon'ble Supreme Court
in the case of Glaxo Smith Kline Consumer Health Care
Limited (supra), present petition is liable to be dismissed and is
accordingly dismissed.
13. Pending application, if any, also stands dismissed.
(BHUWAN GOYAL),J (MANINDRA MOHAN SHRIVASTAVA),CJ
Kamlesh Kumar/11
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