2023 (7) TMI 150 - HC - GST

Petition dismissed for delay in appeal under Section 170 GST; Article 226 not a substitute for statutory appeal

S.K. Eldhose (Skaria Karikkamattathil Eldhose), Versus The State Tax Officer, The Deputy Commissioner Of State Tax (Arrear Recovery), Joint Commissioner Of State Tax, The Commissioner Of State Tax, Thiruvanathapuram,

The HC dismissed the petition seeking condonation of delay in filing an appeal under Section 170 of the GST Act, reaffirming that appeals under Section ... Condonation of delay in filing appeal - case of petitioner is that he was precluded from filing a statutory appeal under Section 170 of the GST Act within the permitted time period of four months - HELD THAT:- This Court in Penuel Nexus Pvt. Ltd v. Additional Commissioner and others [2023 (6) TMI 941 - KERALA HIGH COURT] has categorically held that an appeal under Section 107(4) of the Act cannot be filed beyond the prescribed time period, in view of the stipulations in the enactment. Now what the petitioner could not do directly by filing an appeal, cannot be permitted to be done in a writ petition filed under Article 226 of the Constitution of India, that too to decide on disputed questions of fact i.e, Ext. P5 show cause notice and Ext. P5(a) assessment order were allegedly not served on him - there are no extra-ordinary circumstance made out in the writ petition warranting interference with Exts. P5 and P5(a) by invoking the plenary powers of this Court under Article 226 of the Constitution of India. Petition dismissed. Issues involved:The issues involved in the judgment are quashing of Ext. P5 proceedings and Ext. P5(a) summary order passed by the first respondent due to alleged violation of provisions of the Goods and Services Tax Act, 2017 (GST Act) and GST Rules. The main contention is the failure to receive the assessment orders and show cause notices, leading to the petitioner being time-barred from filing a statutory appeal under Section 107 of the GST Act.Judgment Details:Issue 1: Alleged Violation of GST Act and RulesThe petitioner, a proprietary-ship concern with CGST and KSGST registration, received notice under Section 61 of the GST Act alleging excess input tax credit (ITC) claimed during 2017-2018. Despite explanations and pointing out discrepancies, a revenue recovery notice was issued demanding an amount. The petitioner argued that assessment orders and show cause notices were not received, leading to a time-barred appeal. The Court noted that Ext. P5 and P5(a) were passed on different grounds from Ext. P1, rendering the proceedings flawed and not in compliance with the law.Issue 2: Failure to Receive Assessment Orders and Show Cause NoticesThe petitioner contended that due to not receiving Ext. P5 and P5(a) orders, the statutory appeal under Section 107 of the GST Act was time-barred. However, the Government Pleader argued that communications were sent through email and the GST portal, implying the petitioner was aware of the notices. The Court cited a previous case to emphasize the strict timelines for filing appeals under the Act.Final DecisionThe Court dismissed the writ petition, stating that filing a writ petition under Article 226 to address disputed factual questions regarding the receipt of assessment orders is not permissible. It was concluded that no extraordinary circumstances were presented to warrant interference with Exts. P5 and P5(a) under the plenary powers of the Court. The writ petition was deemed meritless and subsequently dismissed.