2024 (5) TMI 973 - HC - GST

Writ petition dismissed for not filing statutory appeal under Section 107 within limitation period

M/s Thekedar Nand Lal Sharma Versus State of Rajasthan and Others

Rajasthan HC dismissed a writ petition challenging a tax assessment order under RGST/CGST Act, 2017. The petitioner failed to file statutory appeal within ... Maintainability of petition - Failure to file appeal either within the period of limitation as prescribed under Section 107 of the RGST Act, 2017/ the CGST Act, 2017 or within the maximum period thereafter which could be condoned - deliberate non-filing of appeal - HELD THAT:- In the case of Glaxo Smith Kline Consumer Health Care Limited [2020 (5) TMI 149 - SUPREME COURT], the question which arose for consideration was whether the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India, ought to entertain a challenge to the assessment order on the sole ground that the statutory remedy of appeal against that order stood foreclosed by law of limitation. After detailed consideration, the Hon'ble Supreme Court arrived at the conclusion that in such circumstances, the writ petition was not maintainable and was liable to be dismissed. It was held 'since the statutory period specified for filing of appeal had expired long back in August, 2017 itself and the appeal came to be filed by the respondent only on 24.9.2018, without substantiating the plea about inability to file appeal within the prescribed time, no indulgence could be shown to the respondent at all.' Present is a case where the petitioner did not even file appeal and allowed the order passed in assessment proceedings to become final and thereafter approached this Court by filing writ petition seeking to challenge the determination of tax, interest and penalty by the competent authority vide order dated 02.03.2023. Present is not a case where the order under Section 74 of the RGST Act, 2017/ the CGST Act, 2017 levying tax along with interest and penalty was passed without giving any opportunity of hearing to the petitioner. In the writ petition, no plausible explanation has been offered as to why the petitioner did not take recourse to the remedy of statutory appeal. It, therefore, appears that the petitioner consciously did not choose to take recourse to the remedy of appeal as provided under Section 107 of the RGST Act, 2017/the CGST Act, 2017, but waited for the expiry of the period of limitation for filing appeal as also the maximum period of delay which could be condoned in the exercise of powers conferred upon the appellate authority under the provisions of Section 107 of the RGST Act, 2017/ the CGST Act, 2017. Having not preferred an appeal, the petition in the present case, in view of the decision of Hon'ble Supreme Court in the case of Glaxo Smith Kline Consumer Health Care Limited is not maintainable. The writ petition is dismissed. Issues:Challenge to show cause notice and order under RGST Act, 2017/CGST Act, 2017 for financial year 2018-19. Maintainability of writ petition due to failure to file appeal within statutory period.Analysis:The petitioner challenged a show cause notice and an order issued under the RGST Act, 2017/CGST Act, 2017 for the financial year 2018-19. The respondents argued that the petitioner did not file an appeal within the prescribed period as per Section 107 of the Acts, rendering the writ petition not maintainable. Citing the case of 'Assistant Commissioner (CT) LTU, Kakinada & Ors. vs. Glaxo Smith Kline Consumer Health Care Limited,' (2020) 19 SCC 681, the respondents contended that failure to avail the statutory remedy of appeal within the limitation period precludes the maintainability of the writ petition.In the case of 'Glaxo Smith Kline Consumer Health Care Limited,' the Supreme Court considered a similar scenario where the High Court entertained a challenge to an assessment order despite the statutory remedy of appeal being foreclosed due to delay. The Court held that the appeal process is a creation of statute, and failure to file an appeal within the prescribed period does not amount to a violation of fundamental or statutory rights. The Court emphasized the importance of adhering to statutory timelines for filing appeals and dismissed the writ petition in that case.The Court noted that the petitioner in the present case did not file an appeal against the order under the Acts, allowing it to become final. Despite being issued a show cause notice and given an opportunity to be heard, the petitioner did not provide a plausible explanation for not availing the statutory remedy of appeal under Section 107 of the Acts. Therefore, the Court found that the petitioner consciously chose not to pursue the appeal process within the specified timelines and waited until the limitation period had expired.Based on the principles established in the 'Glaxo Smith Kline Consumer Health Care Limited' case and the failure of the petitioner to file an appeal, the Court concluded that the writ petition was not maintainable. The Court dismissed the writ petition, emphasizing the importance of adhering to statutory appeal timelines and the consequences of not availing the statutory remedy provided under the Acts.