GST Appeal filed Beyond 120 Days: Gujarat HC Refuses to Condone 6-Day Delay, says ‘Cannot call Back & Examine OIO’ when Appeal filed [Read Order]

In the matter of GST appeal filed beyond the limitation period of 120 days, the Gujarat High Court refused to condone 6-day delay stating the court cannot call back and examine the order in original when statutory appeal is already filed by the assessee.

“... once the petitioner has availed its alternative efficacious remedy of filing the appeal, this Court cannot call back and examine the Order-in-Original. The petitioner had an opportunity to assail the same by filing the writ petition in case the Order-in-Original was in violation of the principles of natural justice or without jurisdiction” said Justice A.S.Supehia and Justice Pranav Trivedi.

Harsh Deepk Shah, the assessee- petitioner challenged the GST appellate order rejecting the appeal due to expiry of the limitation period.

The issue considered by the high court is whether the Court can set aside the order of the Appellate Authority and further direct the Appellate Authority to accept the appeal beyond the condonation period or not.

According to the counsel of the petitioner, Adv. Abhishek M. Mehta, the delay is marginal and occurred due to genuine reasons.

It was submitted that a large amount of GST had already been paid and that the Order-in-Original suffered from serious factual and legal issues. Therefore the counsel said that the same required interference by the High Court despite the appeal being time-barred.

However, the GST department opposed the petition. The government counsel, stating Assistant Commissioner (CT) v. Glaxo Smith Kline Consumer Health Care Ltd., asserted that Once the statutory remedy was exhausted due to limitation, the High Court could not bypass the legislation by exercising writ jurisdiction.

The high court noted that the GST appeal’s limitation is 3 months, that is 120 days. When the appeal was filed beyond that, then the same cannot be considered by the appellate authority.

Further, it noted the case law, Assistant Commissioner (CT) v. Glaxo Smith Kline Consumer Health Care Ltd, where it was held that although Article 226 confers wide powers, such powers cannot be exercised in a manner that defeats clear legislative intent on limitation.

The court clarified that once an assessee chooses the appellate remedy and fails on limitation, the High Court cannot “call back and examine” the Order-in-Original on merits, unless there is a case of lack of jurisdiction or violation of natural justice.

The bench also observed that as the petitioner took the remedy of statutory appeal, he was fully aware that none of the issues either with regard to violation of the principles of natural justice or lack of jurisdiction was involved. The issues were completely facts based. Therefore, in such circumstances, the court cannot examine the legality of the order in original.

Accordingly, the petition was dismissed.

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