TaxTMI 
TaxTMI 
2025 (6) TMI 1971
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.... "(a) That the Demand cum Show Cause Notice, vide C. No V (39)10-Audit/Inv/2010/Part-I /3182, dated 23/04/2013, (contained in Annexure - 3) be quashed, as being illegal and without Jurisdiction. (b) That the Notice, dated 10/05/2019, U/s 87 of the Finance Act, 1994 (contained in Annexure - 5), issued to the State Bank of India, S.K. Puri Branch (IFSC SBIN 0004142), vide C. No. V(30)321/ARC/CGST/PD/2019/1767, initiating a proceeding for attaching the Petitioner's Bank (Current) Account No. 34963114466 and Bank (Current) Account No. 10636207919, be quashed as being illegal, without jurisdiction and is violation of fundamental right as well as constitutional right and is also in violation of Principle of Natural Justice. (c) That any other lawful relief/s might be allowed for which petitioner is entitled." 2. Petitioner is a firm providing certain goods and services insofar as Centrally Sponsored Schemes Services provided therein by the State government. There was an agreement on 19.06.2007 between the Bihar Shiksha Pariyojna Parishad (BSPP), the Society and the petitioner - M/s Prakriti Enterprises. They have executed service with goods as is evident fro....
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....titioner while replying to the aforementioned contention of the respondents submitted that question of delay and laches would not arise in view of violation of Section 73 (4-B) of the Act, 1994. It is further submitted that order dated 31.10.2014 has not been communicated to the petitioner. This Court under Article 226 can ignore the delay and laches in the light of the facts of the case in hand. 5. Heard learned counsels for the respective parties. 6. Preliminary issue raised on behalf of the respondents is that writ petition is barred by limitation and laches. Time and again Courts have held that delay and laches is required to be examined by the Writ Courts and so also in not exhausting alternative statutory remedy. In the present case, cause of action accrued to the petitioner on 31.10.2014 whereas the writ petition was filed in the month of June, 2019. Petitioner had a statutory remedy of appeal before the appellate tribunal under Section 86 of the Act, 1994 and the same has not been exhausted. It is necessary to reproduce Section 86 of the Act, 1994 and it reads as under : "86. Appeals to Appellate Tribunal - (1) Any assessee aggrieved by an order passed by a [....
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....3) "Every appeal under sub-section (2) or sub-section (2A) shall be filed within four months from the date on which the order sought to be appealed against is received by the Committee of Chief Commissioners or, as the case may be, the Committee of Commissioners.";] (4) [The Commissioner of Central Excise or [any Central Excise Officer subordinate to him] or the assessee, as the case may be, on receipt of a notice that an appeal against the order of the Commissioner of Central Excise or the Commissioner of Central Excise (Appeals) has been preferred under sub-section (1) or sub-section (2) or sub-section (2A)] by the other party may, notwithstanding that he may not have appealed against such order or any part thereof, within forty-five days of the receipt of the notice, file a memorandum of cross-objections, verified in the prescribed manner, against any part of the order of the [Commissioner] of Central Excise or the [Commissioner] of Central Excise (Appeals), and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3). (5) The Appellate Tribunal may admit an appeal or permit th....
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....iled after about five years from the date of cause of action accrued to the petitioner. In this regard, it is necessary to take note of Hon'ble Supreme Court decision namely State of Jammu and Kashmir V/s. R.K. Zalpuri and others reported in AIR 2016 SC 3006, in Paragraph No. 20 it is held as under: "20. Having stated thus, it is useful to refer to a passage from City and Industrial Development Corporation V/s. Dosu Aardeshir Bhiwandiwala and others {(2009) 1 SCC 168}, wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution, has expressed thus:- "The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: (a) Adjudication of writ petition involves any complex and disputed question of facts and whether they can be satisfactorily resolved; (b) The petition reveals all material facts; (c) The petitioner has any alternative or effective remedy for the resolution of the dispute; (d) Person invoking the jurisdiction is guilty of unexplained delay and laches; (e) Ex facie barred by any laws of limitation; (f) Grant of relief is against public polic....
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.... 226 of the Constitution is very wide, the Court must exercise self-imposed restraint and not entertain the writ petition, if an alternative effective remedy is available to the aggrieved person. In para 7, the Court observed thus: (Thansingh Nathmal case [Thansingh Nathmal v. Supt. of Taxes, AIR 1964 SC 1419], AIR p. 1423) "7. Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed, the appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under Article 226 and sought to reopen the decision of the taxing authorities on question of fact. The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discr....
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....be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford [Wolverhampton New Waterworks Co. v. Hawkesford, (1859) 6 CBNS 336, 356 : 141 ER 486] in the following passage: 'There are three classes of cases in which a liability may be established founded upon statute. ... But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by t....
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.... Section 125 of the Electricity Act, 2003 was only 60 days. In other words, the appeal was presented beyond the condonable period of 60 days. As a result, this Court could not have condoned the delay of 71 days. Notably, while admitting the appeal, the Court had condoned the delay in filing the appeal. However, at the final hearing of the appeal, an objection regarding appeal being barred by limitation was allowed to be raised being a jurisdictional issue and while dealing with the said objection, the Court referred to the decisions in Singh Enterprises v. CCE [Singh Enterprises v. CCE, (2008) 3 SCC 70], CCE v. Hongo (India) (P) Ltd. [CCE v. Hongo (India) (P) Ltd., (2009) 5 SCC 791], Chhattisgarh SEB v. CERC [Chhattisgarh SEB v. CERC, (2010) 5 SCC 23] and Suryachakra Power Corpn. Ltd. v. Electricity Deptt. [Suryachakra Power Corpn. Ltd. v. Electricity Deptt., (2016) 16 SCC 152 : (2017) 5 SCC (Civ) 761] and concluded that Section 5 of the Limitation Act, 1963 cannot be invoked by the Court for maintaining an appeal beyond maximum prescribed period in Section 125 of the Electricity Act. In the case of Mrinmoy Maity vs. Chhanda Koley and Others reported in 2024 SCC OnLine SC 551, i....
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....latches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and latches on the part of the applicant in approaching a writ court. This Court in the case of Tridip Kumar Dingal v. State of W.B., (2009) 1 SCC 768 has held to the following effect: "56. We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches. 57. If the p....