Patna High Court Rules Petitioner Ineligible for Extraordinary Jurisdiction Due to Failure to Pursue Appeal Remedy

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Published on: November 20, 2023 at 11:38 IST

The Patna High Court addressed a writ petition contesting an assessment order and the subsequent rejection of an appeal based on the grounds of limitation.

The court held that the petitioner, due to their own omission, had not utilized the appellate remedy. Consequently, the court emphasized that the extraordinary jurisdiction under Article 226 of the Constitution of India cannot be invoked.

The division bench, consisting of Chief Justice K. Vinod Chandran and Justice Partha Sarthy, maintained that when a specific period for condoning delay is stipulated, neither the Appellate Authority nor the Court, under Article 226 of the Constitution, has the authority to extend this period.

This ruling transpired in response to a writ petition challenging an assessment order and the rejection of a belatedly filed appeal, contending that the assessment order was ex parte.

The State filed a comprehensive counter-affidavit, highlighting that a notice had been issued with multiple opportunities given to the assessee for explaining the claimed excess input tax. However, the assessee failed to respond.

The petitioner had asserted input tax credit of Rs. 3,78,624.23 each under the CGST and SGST Act. Still, the GSTR-2A provided by the supplier showed a credit of only Rs. 93,825.77.

The court took note of the sequence of events, including electronic notices and reminders, leading to a show-cause notice dated 08.11.2021. The petitioner did not respond, resulting in an order under Section 73(9) of the BGST Act on 10.12.2021. The petitioner filed an appeal after a significant delay of one month and nine days.

Referring to the Supreme Court’s decision in Suo Motu Writ Petition (C) No. 3 of 2020 regarding the extension of limitation due to the pandemic, the court acknowledged that the petitioner failed to avail the extended period. The court emphasized that the appeal should have been filed by 29.05.2022, as per the Supreme Court’s directive, but the petitioner filed it on 10.07.2022, 12 days after the expiration of the extended limitation period.

Quoting State of H.P & Ors. v. Gujarat Ambuja Cement Limited & Anr., (2005), the court asserted that the High Court may refuse to exercise discretion if an adequate remedy exists elsewhere, allowing interference only in cases of a breach of natural justice, infringement of fundamental rights, jurisdictional error, or a challenge to the vires of an Act.

The court concluded that, having failed to pursue statutory remedies, the petitioner cannot approach the court under Article 226 to challenge an assessment order.

It reiterated that when there is a specified period for condonation of delay, neither the Appellate Authority nor the court has the power to extend it under Article 226.

The court stated, “The petitioner, by his own 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.”

It emphasized that no jurisdictional error, violation of natural justice, or abuse of court processes was asserted by the petitioner in the writ petition.

Case Title: M/s Punit Kumar Choubey vs. The Commissioner, Commercial Tax, and Others

Case No.: Civil Writ Jurisdiction Case No. 9975 of 2023

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