2024 (4) TMI 1268 - HC - GST

Maintainability of the writ petition - statutory remedy of appeal against that order has not been availed - Condonation of the delay in filing of the appeal - period of limitation as prescribed under Section 107 of the RGST Act 2017/ the CGST Act 2017 - Demand of tax liability along with interest and penalty - Validity of Show cause notice issued under Section 74 - HELD THAT - Present is a case where the petitioner did not even file appeal and allowed the order passed in assessment proceedings to become final and thereafter approached this Court by filing writ petition seeking to challenge the determination of tax interest and penalty by the competent authority vide order dated 23.02.2023. Present is not a case where the order under Section 74 of the RGST Act 2017/ the CGST Act 2017 levying tax along with interest and penalty was passed without giving any opportunity of hearing to the petitioner. Even according to the petitioner he was issued show cause notice and thereafter impugned order was passed. In the writ petition no plausible explanation has been offered as to why the petitioner did not take recourse to the remedy of statutory appeal. It therefore appears that the petitioner consciously did not choose to take recourse to the remedy of appeal as provided under Section 107 of the RGST Act 2017/the CGST Act 2017 but waited for the expiry of the period of limitation for filing appeal as also the maximum period of delay which could be condoned in the exercise of powers conferred upon the appellate authority under the provisions of Section 107 of the RGST Act 2017/ the CGST Act 2017. 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 2020 (5) TMI 149 - SUPREME COURT is not maintainable.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court in this matter were:

• Whether the writ petition challenging the show cause notice issued under Section 74 of the Rajasthan Goods and Services Tax Act, 2017 (RGST Act, 2017)/Central Goods and Services Tax Act, 2017 (CGST Act, 2017) and the consequential order directing payment of tax, interest, and penalty is maintainable in the absence of an appeal filed within the prescribed statutory period.
• Whether the High Court can entertain a writ petition under Article 226 of the Constitution of India challenging an assessment order when the statutory remedy of appeal against that order has not been availed within the limitation period prescribed under Section 107 of the RGST Act, 2017/CGST Act, 2017, or within the maximum period for condonation of delay.
• Whether the petitioner was justified in bypassing the statutory appeal mechanism and seeking relief through writ jurisdiction.
• The applicability and binding nature of the Supreme Court precedent in Assistant Commissioner (CT) LTU, Kakinada & Ors. vs. Glaxo Smith Kline Consumer Health Care Limited, (2020) 19 SCC 681, on the maintainability of writ petitions challenging tax assessment orders where statutory appeals have not been filed in time.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Maintainability of writ petition challenging assessment order without filing statutory appeal

Relevant legal framework and precedents: The statutory framework mandates that any challenge to an order passed under the RGST Act, 2017/CGST Act, 2017 must be pursued through the appellate remedy provided under Section 107 of the respective Acts. The limitation period for filing such appeal is prescribed, and the appellate authority has limited power to condone delay. The Supreme Court in Glaxo Smith Kline Consumer Health Care Limited (supra) decisively ruled that High Courts should not entertain writ petitions challenging assessment orders if the statutory appeal remedy was not availed within the prescribed or condoned period.

Court's interpretation and reasoning: The Court noted that the petitioner had not filed any appeal against the order dated 23.02.2023 passed under Section 74 of the RGST Act, 2017/CGST Act, 2017 within the prescribed limitation period or sought condonation of delay. The petitioner allowed the order to become final and then approached the High Court by way of writ petition. The Court emphasized that the remedy of appeal is a creature of statute and must be exhausted before invoking writ jurisdiction. The Court relied heavily on the Supreme Court's reasoning in Glaxo Smith Kline, which held that writ jurisdiction cannot be used as a substitute for statutory appeal remedies, especially when the statutory appeal remedy is available and the delay in filing appeal is not satisfactorily explained.

Key evidence and findings: The petitioner was duly served with the show cause notice and the order. There was no denial of opportunity of hearing. The petitioner did not file any appeal or seek condonation of delay. No plausible explanation was offered for bypassing the appeal remedy. The Court also noted that the petitioner consciously chose not to pursue the appeal remedy.

Application of law to facts: Applying the principles laid down in Glaxo Smith Kline, the Court found that the petitioner's writ petition was not maintainable. The statutory appeal remedy was available, but the petitioner failed to avail it within the prescribed time or seek condonation. The writ petition was therefore liable to be dismissed at the threshold.

Treatment of competing arguments: The petitioner urged various grounds challenging the show cause notice and order, but the respondents pointed out the non-filing of appeal and reliance on the Supreme Court precedent. The Court found the respondents' submission persuasive and noted that the petitioner's failure to avail the statutory remedy was fatal to the maintainability of the writ petition.

Conclusion: The writ petition challenging the assessment order without filing a statutory appeal within limitation is not maintainable.

Issue 2: Applicability of Supreme Court precedent in Glaxo Smith Kline Consumer Health Care Limited

Relevant legal framework and precedents: The Supreme Court in Glaxo Smith Kline addressed whether a High Court can entertain a writ petition challenging an assessment order when the statutory appeal remedy is foreclosed by limitation. The Court held that the High Court should not entertain such writ petitions and that the remedy of appeal is exclusive and must be exhausted.

Court's interpretation and reasoning: The Court extensively quoted the Supreme Court's reasoning, highlighting that the remedy of appeal being a creature of statute cannot be bypassed by invoking writ jurisdiction. The Supreme Court emphasized that failure to file appeal within the statutory period or to provide a sufficient cause for delay precludes the High Court from entertaining the writ petition. The Court also noted that the Supreme Court examined the facts of the Glaxo Smith Kline case in detail, including the respondent's awareness of the order, deposit of part of the tax amount, and the absence of any violation of principles of natural justice.

Key evidence and findings: The Court observed that in the present case, unlike Glaxo Smith Kline, no appeal was filed at all, and no explanation was provided for the failure to file appeal. The petitioner was aware of the proceedings and had opportunity to appeal but consciously did not do so.

Application of law to facts: The Court applied the ratio of Glaxo Smith Kline to the facts of the present case and concluded that the writ petition was barred for non-exhaustion of statutory remedy and failure to file appeal within limitation.

Treatment of competing arguments: The petitioner did not provide any plausible justification for non-filing of appeal, and the Court rejected any attempt to circumvent the statutory appeal mechanism through writ jurisdiction.

Conclusion: The Supreme Court precedent in Glaxo Smith Kline squarely applies and bars maintainability of the writ petition.

Issue 3: Whether principles of natural justice or procedural irregularities justify entertaining writ petition

Relevant legal framework and precedents: Writ jurisdiction under Article 226 can be invoked where there is violation of fundamental rights, principles of natural justice, or jurisdictional errors. However, mere dissatisfaction with an order without such violations does not justify bypassing statutory remedies.

Court's interpretation and reasoning: The Court found that the petitioner was issued a show cause notice and given opportunity of hearing before the order was passed. There was no allegation or finding of violation of natural justice or jurisdictional error in the order dated 23.02.2023. The Court noted that the petitioner did not allege any procedural irregularity or non-compliance of statutory requirements that would justify invoking writ jurisdiction.

Key evidence and findings: The record showed that the petitioner participated in the proceedings and was aware of the assessment order. No procedural infirmity was demonstrated.

Application of law to facts: Since no violation of natural justice or jurisdictional error was established, the Court held that the writ petition could not be entertained as a substitute for statutory appeal remedy.

Treatment of competing arguments: The petitioner's arguments did not raise any issue of natural justice or jurisdictional defect. The Court accordingly rejected any such contention.

Conclusion: Absence of violation of natural justice or procedural irregularity precludes entertaining writ petition in place of statutory appeal.

3. SIGNIFICANT HOLDINGS

The Court's crucial legal reasoning includes the following verbatim excerpt from the Supreme Court's decision in Glaxo Smith Kline Consumer Health Care Limited (supra):

"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 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."

"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."

Core principles established by the Court are:

• The statutory appeal remedy under the RGST Act, 2017/CGST Act, 2017 is exclusive and must be exhausted before invoking writ jurisdiction under Article 226.
• The High Court should not entertain writ petitions challenging tax assessment orders if the appeal remedy is foreclosed by limitation or not pursued.
• Writ jurisdiction is not a substitute for statutory appeal remedies, particularly where no violation of natural justice or jurisdictional errors are alleged.
• Failure to file appeal within limitation without plausible explanation precludes judicial interference by way of writ petition.

Final determinations on each issue:

• The writ petition challenging the show cause notice and assessment order is not maintainable due to non-filing of statutory appeal within limitation.
• The Supreme Court precedent in Glaxo Smith Kline is fully applicable and bars entertainments of such writ petitions.
• No violation of principles of natural justice or procedural irregularity was established to justify writ jurisdiction.
• The writ petition was accordingly dismissed at the threshold.