Telangana High Court
M/S. Ramanbhai Chhotabhai Patel ... vs Assistant Commissioner Of ... on 10 November, 2021
Bench: Ujjal Bhuyan, Chillakur Sumalatha
HIGH COURT FOR THE STATE OF TELANGANA, HYDERABAD
****
W.P.No.28183 of 2021
Between:
M/s Ramanbhai Chhotabhai Patel & Company rep.
by its Partner, Mr. Vishal Patel, Nizamabad, Telangana.
...Petitioner
Vs.
Assistant Commissioner of Central taxes,
Central Excise and Service tax, Nizamabad,
And four others.
...Respondents
JUDGMENT PRONOUNCED ON: 10.11.2021
THE HON'BLE SRI JUSTICE UJJAL BHUYAN
AND
THE HONOURABLE DR JUSTICE C.SUMALATHA
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes/No
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes/No
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes/No
____________________
UJJAL BHUYAN, J
2
* THE HON'BLE SRI JUSTICE UJJAL BHUYAN
AND
THE HONOURABLE DR JUSTICE C.SUMALATHA
+ W.P.No.28183 of 2021
%10.11.2021
#Between:
M/s Ramanbhai Chhotabhai Patel & Company rep.
by its Partner, Mr. Vishal Patel, Nizamabad, Telangana.
...Petitioners
Vs.
Assistant Commissioner of Central taxes,
Central Excise and Service tax, Nizamabad,
And four others.
...Respondents
! Counsel for Petitioners : Mr. P.Karthik Ramana
^Counsel for respondents 1 & 2 : Mr. B.Narasimha Sharma
Counsel for respondent No.3 : Mr. Krishna Swamy, for Sri N.Rajeshwara
Rao, learned Assistant Solicitor General.
Counsel for respondent Nos. 4& 5 : Sri K.Raji Reddy.
<GIST:
> HEAD NOTE:
? Cases referred
1. Civil Appeal No.5121 of 2021 (Arising out of SLP(C)No.13639 of 2021 @
D.No.11555 of 2020 dated 03.09.2021.
2. AIR 2020 SC 2819
3
THE HON'BLE SRI JUSTICE UJJAL BHUYAN
AND
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
W.P.NO.28183 OF 2021
O R D E R (Per the Hon'ble Sri Justice Ujjal Bhuyan)
Heard Mr. P.Karthik Ramana, learned counsel for the
petitioner; Mr. B.Narasimha Sharma, learned counsel for respondents
1 and 2; Mr. Krishna Swamy for the learned Assistant Solicitor
General of India appearing for respondent No.3; and Sri K.Raji
Reddy, learned counsel for respondents 4 and 5.
2. By filing this petition under Article 226 of the Constitution
of India, petitioner has assailed legality and validity of Order-in-
Original dated 28.03.2019 passed by respondent No.1 under
Section 73 of the Central Goods and Services Tax Act, 2017 (briefly
'the Act' hereinafter).
3. From a perusal of the Order-in-Original, we find that
petitioner had failed to file Goods and Service Tax (GST) returns
since October, 2017 to December, 2018. After the discussions and
findings recorded in paragraph No.10 of the Order-in-Original,
respondent No.1 passed the following order:
a) I confirm the demand of Rs.1,54,76,440/- (rupees one crore fifty four
lakhs seventy six thousand four forty only), which is the tax amount
not paid during the period December, 2017 to December, 2018 as per
Section 73(1) of the CGST Act, 2017 read with section 20 of IGST
Act, 2017.
b) I order for recovery of Interest, at the rate of 18% under Section 50(1)
of CGST Act, 2017 read with Section 20 of IGST Act, 2017 for the
period from October, 2017 to December, 2018 during which the tax
payment to government is delayed.
c) I impose penalty under section 122(1)(iii) read with section 127 of
CGST / TGST Act, 2017 and Section 20 of IGST Act, 2017 which
comes around Rupees 64,87,579/- (Sixty four lakhs eighty seven
thousand five seventy nine only) as mentioned at 10(b).
d) I impose penalty of ten percent of the amount of tax amount of
Rs.1,79,10,396, as mentioned at 10(a) above, under Section 73(9) of
the CGST / TGST Act, 2017.
e) I impose penalty under Section 73(11) of CGST / TGST Act, 2017
read with Section 2 of IGST Act, 2017 which comes out to be Rupees
2,24,602 (Two lakhs twenty four thousand six hundred two only)
f) I order for initiation of recovery proceedings as per Section 79 read
with Section 78 of CGST Act, 2017 read with Section 20 of IGST Act,
2017 if the tax amount due to the government, interest and penalty, as
applicable, are not paid within one month from the date of issue of this
order.
4. According to learned counsel for the petitioner, respondent
No.1 ought to have proceeded under Section 62 of the Act, since it is a
case of non-filing of return. Referring to Section 62, he submits that
as per sub-section (1) thereof, provision of Section 62 has overriding
effect over Sections 73 and 74. Notwithstanding the same, respondent
No.1 erroneously assumed jurisdiction and passed the Order-in-
Original under Section 73 of the Act. He submits that in terms of the
Order-in-original petitioner has deposited the tax. Despite the same,
Superintendent of Central Tax, Nizamabad Branch issued notice to the
petitioner on 09.08.2021 calling upon the petitioner to pay the penalty
of Rs.85,03,221.00 (Rupees eighty five lakhs, three thousand, two
hundred and twenty one only).
5. We find that against an order passed under Section 73 of the
Act, the person aggrieved has a remedy of filing appeal to the
appellate authority under Section 107 of the Act. As per
sub-section (1) thereof, such appeal may be filed within three months
from the date of communication of the order or decision. As per sub-
section (4), if the appellate authority is satisfied that the appellant was
prevented by sufficient cause from presenting the appeal within the
aforesaid period of three months, it shall allow the appellant to present
the same within a further period of one month.
6. In the instant case, the order under Section 73 was passed on
28.03.2019 and communicated since petitioner has deposited the tax
in terms of the said order. Period of three months and the extended
period of further one month have expired long back. It is settled law
that when the statute does not provide for further extension of
limitation beyond the extended period, the limitation for filing appeal
would end on the expiry of the extended period of limitation provided
by the statute. To circumvent the above situation recourse to a
proceeding under Article 226 of the Constitution of India is not
permissible. This has been explained by the Supreme Court in the
recent decision reported in ASSISTANT COMMISSIONER OF
STATE TAX vs. M/S COMMERCIAL STEEL LIMITED1.
7. Though learned counsel for the petitioner has argued that it
is a case of jurisdictional error or wrongful assumption of jurisdiction
by the assessing officer when it was not available and thereby a case
for invoking the jurisdiction under Article 226 of the Constitution of
India, we are not impressed by the submission so made.
8. Respondent No.1 had the jurisdiction to assess the petitioner,
whether it is under Section 62 or under Section 73 of the Act. Even if
we accept the contention of learned counsel for the petitioner that
respondent No.1 ought to have proceeded under Section 62 and not
under Section 73, it is at best a case of invoking a wrong legal
provision instead of another, but certainly that will not make it a case
of no jurisdiction, or lack of jurisdiction. Acting without jurisdiction
is one thing and invoking a wrong provision while acting within
jurisdiction is another thing.
Civil Appeal No.5121 of 2021 (Arising out of SLP(C) No.13639 of 2021 @ D No.11555 of
2020) dated 03-09-2021
9. Moreover, we may mention that petitioner has partly
complied with the Order-in-Original by paying the tax dues. If that be
the position, then there is acceptance of the Order-in-Original.
Thereafter, part challenge to the Order-in-Original may not be
maintainable.
10. At this stage, we may also refer to the decision of the
Supreme Court in Assistant Commissioner, Kakinada Vs. M/s. Glaxo
Smith Kline Consumer Health Care Limited2. The moot question
before the Supreme Court in the above appeal 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 the law of imitation? In that case,
Supreme Court had considered the provision of filing an appeal under
the Andhra Pradesh Value Added Tax Act, 2005. As per Section 31
of the said Act, an appeal could be preferred against the assessment
order within 30 days of service of the order which period is
extendable by a further period of 30 days if the appellate authority is
AIR 2020 SC 2819
satisfied that the appellant had sufficient cause for not preferring the
appeal within the initial period of 30 days. In that case the appeal was
filed even beyond the extended period of limitation which was
rejected by the appellate authority on the ground that it had no power
to condone the delay beyond 30 days. However, the High Court under
Article 226 of the Constitution of India entertained the writ petition
challenging the order of assessment and set aside the order of
assessment, relegating the petitioner to the assessing authority for
reconsideration of its assessment. It was in this factual backdrop the
Supreme Court answered the question framed by holding that the
High Court ought not to have entertained the writ petition, whereafter
the judgment of the High Court was set aside and the writ petition was
dismissed.
11. In such circumstances, we are of the considered opinion
that challenge to the Order-in-Original dated 28.03.2019 cannot be
entertained in the present writ proceeding.
12. Accordingly writ petition is dismissed. However there
shall be no order as to costs.
13. Interlocutory applications pending, if any, shall stand
closed.
-----------------------------------------------------
UJJAL BJUYAN,J
---------------------------------------------------------
DR. CHILLAKUR SUMALATHA,J
DATE:10--11--2021
AVS/KVSN
Note:
L.R. copy to be marked
B/O
