Orissa HC dismisses writ petition filed beyond condonable period u/s 107 of GST Act [Read Order]

The Orissa High Court has held that writ petition is not maintainable being filed beyond the condonable period provided under Section 107 of the GST Act.

Bikash Panigrahi, the petitioner challenged the propriety and legality of order dated 7th February, 2022 passed by the Deputy Commissioner of Commercial Tax and Goods and Services Tax, Bargarh Circle, Sambalpur, Odisha pertaining to the financial year, 2018-19 under Section 74 of the Central Goods and Services Tax Act, 2017 and the Odisha Goods and Services Tax Act, 2017 (“GST Act”),

The petitioner, proprietorship concerns carrying on its business in the name and style “M/s. Bikash Panigrahi”, located in the district of Bargarh against which a proceeding under Section 74 of the GST Act was initiated by issue of show cause notice dated 27th November, 2020 and having failed to file reply within the period stipulated therein, the assessment order has been passed whereby a demand in Form GST DRC-07 was issued. Challenge is laid against the said order in this writ petition.

It was submitted that the order of assessment dated 7th February, 2022 is not only arbitrary and illegal but also it is not in consonance with tenet of law, inasmuch as there could not have been suppression or mis-statement though return showing “NIL” being furnished to the Department. The notice issued depicting non-filing of return is a misnomer.

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Had an opportunity been afforded to the petitioner, the documents/evidence could have been produced before the Assessing Officer for appraisal. He submitted that in absence of reply to the show cause notice, the Assessing Officer jumped to the conclusion that there was wilful suppression pertaining to financial year 2018-19. Since there is no fraud element involved in the transactions that are subject matter of assessment, the proceeding under Section 74 of the GST Act is illegal, arbitrary and irrational.

The respondent argued that had the petitioner availed the remedy available under the statute, recourse to the provisions under Section 107 of the GST Act could have been availed. Under sub-section (4) ibid. the appellate authority is vested with discretion to condone the delay in filing the appeal within a further period of thirty days in the event the appeal is not filed within a period of three months as contemplated under sub-section (1) thereof.

As a short point is involved whether the writ petition is maintainable for there occurred unexplainable delay of more than three years from the date of passing the assessment order, this writ petition is taken up for final hearing at the stage of admission. Accordingly, Mr. Abhilash Mishra, counsel for the petitioner and Mr. Sunil Mishra, Standing Counsel for Commercial Tax and Goods and Services Tax Organization.

Upon scrutiny of material available on record, it is ex facie manifest that the petitioner has admitted to have been served with show cause notice issued on 27th November, 2020 via common portal. There is, therefore, no question of any doubt that the petitioner had the knowledge about initiation of proceedings being initiated under Section 74 of the GST Act.

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As it appears from the document enclosed to the writ petition as Annexure-2, the Assessing Officer has passed the assessment order on 7th February, 2022 in connection with said show cause notice dated 27th November, 2020 with respect to transactions pertaining to financial year 2018-19.

A bare reading of provisions under Section 107 of the GST Act makes it abundantly clear that the appellate authority is empowered to exercise his discretion to condone the delay beyond the period specified under sub-section (1) for filing appeal for further period of thirty days in terms of sub-section

A bench of Chief Justice Harish Tandon and Justice Mr. Murahari Sri Raman observed that if notice/order is uploaded on common GST portal, the same shall be considered as service on the assessee (petitioner) in view of unambiguous provisions contained in Section 169 of the GST Act and the writ petition is not maintainable being filed beyond the condonable period provided under Section 107 of the GST Act.

Under the aforesaid premises, the assessment order dated 07.02.2022 passed under Section 74 of the GST Act by the Deputy Commissioner of Commercial Tax and Goods and Service Tax, Bargarh Circle, Sambalpur being challenged by way of filing the writ petition on 08.04.2025 is exceptionable as the petitioner has not ascribed reason for the unusual delay in approaching this Court.

The court dismissed the writ petition.

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