Extraordinary Jurisdiction under Article 226 cannot be Invoked When Assessee Failed to File Statutory Appeal under GST Act: Patna HC [Read Order]

The Patna High Court has held that extraordinary jurisdiction under Article 226 of the Constitution of India cannot be invoked when the assessee fails to file a statutory appeal before the Central Goods and Service Tax Act(CGST).

M/s Punit Kumar Choubey, the petitioner challenged the assessment order and the rejection of an appeal filed, on the ground of limitation. It was urged that the assessment order itself was an ex parte order.

It was stated that there was a notice issued and repeated opportunities given to the assessee for putting forth their explanation of the excess input tax claimed; which however was not availed of by the assessee. The assessee had claimed input tax credits respectively of Rs. 3,78,624.23/- each under CGST and SGST Act.

The GSTR-2A made available by the supplier of the petitioner-assessee showed only a credit of Rs. 93,825.77/-.  At first, an electronic notice was uploaded in the portal, which was dated 17.08.2021 to which no response was received. Reminders were made repeatedly on 06.09.2021 and 16.09.2021, which were also not responded to.

Finally, a show-cause notice along with a summary in Form GST DRC-01 dated 08.11.2021 was issued to the petitioner, fixing 07.12.2021 as the last date of hearing. The petitioner failed to appear and the order was passed on 10.12.2021 under Section 73(9) of the BGST Act.

The summary of the order was also served on the petitioner electronically on 10.12.2021 by uploading it to the common portal. The petitioner filed an appeal with a gross delay of one month and nine days. The assessment order was dated 10.12.2021 and the appeal was filed only on 10.07.2022.

The High Court can always refuse the exercise of discretion if there is an adequate and effective remedy elsewhere.  The High Court can exercise the power only if it concludes that there has been a breach of principles of natural justice or due procedure required for the decision has not been adopted.

The two-judge bench of Chief Justice K Vinod Chandran and Justice Partha Sarthy observed that “Having not availed the statutory remedies available, the petitioner cannot seek to approach this Court under Article 226 of the Constitution of India to challenge an assessment order, especially concerning the computation of the turnover and the determination of the taxable turnover and the tax payable, as arrived at by the Assessing Officer. In the BGST Act, an appellate remedy is provided under Section 107, which has to be availed within three months or with a delay within a further period of one month.”

The petitioner by his failure has not availed the appellate remedy and in that circumstance, there can be no invocation of the extraordinary jurisdiction under Article 226 of the Constitution of India.

The Court found that there is no jurisdictional error, violation of principles of natural justice or abuse of process of Court averred or argued by the petitioner in the above writ petition. The writ petition was dismissed.

To Read the full text of the Order CLICK HERE

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