2024 (5) TMI 1033 - HC - GST

Validity of demand notice and assessment order - failure to file appeal within statutory period - availability of alternative remedy - HELD THAT - The petitioner had a statutory remedy by way of an appeal under Section 107 (4) of the Bihar Goods and Services Tax Act. The aforesaid provision requires an appeal to be filed within a period of three months and upon delay to be filed within a further period of one month; which could also be considered if there is satisfactory explanation for the delay occasioned. The petitioner has not availed the remedy and at this point of time cannot seek to avail the appellate remedy for reason of the limitation period having expired long prior. The Hon ble Supreme Court in IN RE COGNIZANCE FOR EXTENSION OF LIMITATION 2022 (1) TMI 385 - SC ORDER 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 30.05.2022 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. Hence a delayed appeal could also have been filed on or before 30.06.2022. The present writ petition is filed on the demand notice being issued which is not permissible when there was an alternate efficacious remedy which was not availed by the petitioner for reason of his own default. There are specific contours for invocation of the extra ordinary remedy under Article 226 of the Constitution of India as has been delineated in the STATE OF HP. AND OTHERS VERSUS GUJARAT AMBUJA CEMENT LTD. AND ANOTHER (AND OTHER APPEALS) 2005 (7) TMI 353 - SUPREME COURT . No ground exists and in any event the attempt of the petitioner to bypass the appellate remedy which he chose to not avail of cannot be countenance - petition dismissed.

Summary

Issues involved: Challenge to demand notice and assessment order, failure to file appeal within statutory period, invocation of extraordinary remedy under Article 226.

Challenge to demand notice and assessment order: The petitioner challenged the demand notice and assessment order dated 27.12.2020, contending that despite not having received the assessment order, no appeal was filed. The petitioner, as an assessee, had the statutory remedy of filing an appeal under Section 107 (4) of the Bihar Goods and Services Tax Act within a specified period. However, the petitioner failed to avail this remedy within the prescribed time limit, rendering it time-barred.

Failure to file appeal within statutory period: The Hon'ble Supreme Court, in a related matter concerning the extension of limitation due to the pandemic situation, had provided for the saving of limitation between 15.03.2020 and 28.02.2022. It was further directed that an appeal could be filed within ninety days from 01.03.2022, allowing for an extended period for filing appeals. Despite this extension, the petitioner did not file an appeal within the stipulated time frame, thereby forfeiting the opportunity to seek redress through the appellate process.

Invocation of extraordinary remedy under Article 226: The High Court emphasized that the petitioner, by choosing not to avail the appellate remedy within the extended period granted by the Supreme Court, could not circumvent the statutory provisions by directly approaching the court through a writ petition. Citing the precedent set in State of H.P & Ors. v. Gujarat Ambuja Cement Limited & Anr., the court highlighted the specific conditions required for invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. As the petitioner failed to meet these conditions and had not exhausted the available appellate remedy, the court dismissed the writ petition outright.

This judgment underscores the importance of adhering to statutory timelines for filing appeals and the limitations on seeking extraordinary remedies when alternative legal avenues are available but not pursued diligently.