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2021 (11) TMI 582 - TELANGANA HIGH COURTRecovery of tax alongwith interest and penalty - Jurisdiction - invoking wrong provisions of GST - Non-payment of GST - petitioner had failed to file Goods and Service Tax (GST) returns since October, 2017 to December, 2018 - HELD 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 subsection (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. 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 situation recourse to a proceeding under Article 226 of the Constitution of India is not permissible. 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 - the 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. The writ petition is dismissed.
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