TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1248
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....on of this Court with the following prayer(s): "It is therefore prayed that your Lordship would graciously be pleased to admit this petition, issue notice to the Opp.Parties asking them why the assessment order dated 7.2.2022 and demanding Rs.7.13,705/- Annexure-2 passed by the Opp.party No. 2 shall not be set aside and if they failed to explain the same with sufficient reason issue Rule Nisi and be pleased to set aside the order dated 7.2.2022 passed by the Opp.Party No.2 vide Annexure-2 illegal, arbitrary the interest of justice. And in alternative be pleased to allow the petitioner to file statutory appeal before the appellate authority against the impugned order under Annexure-2 and be pleased to direct the appellate authority to condone the delay in preferring appeal and also be pleased to direct the Appellate authority to disposed of the appeal in accordance with law within a stipulated time period; And pleased to pass any other order(s) as this Hon'ble Court deem fit and proper. And, for this act of kindness the petitioner shall as on duty bound ever pray." Facts: 2. The petitioner, proprietorship concern carrying on its business in the name and style "M/s. Bika....
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....t for exercise of discretion to condone the delay being provided for, in view of Orissa Mineral Development Company Ltd. Vrs. Commissioner of Sales Tax, Orissa, (1960) 11 STC 12 (Ori) = AIR 1960 Ori 79 the writ petition is liable to be dismissed. He sought to lighlight that it has been unequivocally laid down in the said judgment as: "In this application under Article 226 of the Constitution the validity of the assessment of the petitioner to sales tax was challenged. On behalf of the sales tax department, however, Mr. G.K. Misra raised a preliminary objection on the ground that on the facts as stated by the applicant himself he had an alternative remedy by way of a regular appeal before the Sales Tax Tribunal and that consequently this Court should not exercise its extraordinary jurisdiction under Article 226. *** The law of limitation for filing revision petition before the Collector and the Revenue Commissioner was laid down in Rules 52 and 53 of the Orissa Sales Tax Rules, and a period of thirty days from the date of receipt by the assessee of the order of the appellate authority was fixed for filing revision petitions before the Collector and a period of sixty days from ....
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....owers of the Tribunal as an appellate authority are co-extensive with those of the lower authorities. It can investigate facts and come to its own independent findings. The questions involved in this petition are mixed questions of law and fact. The petitioner has been contending that the sales in question were inter-State sales and also that they were sales in the course of export and as such outside the purview of the Orissa Sales Tax Act. On the other hand, the department has been contending that the sales were completed in Orissa and were consequently purely internal sales. This disputed question can be finally disposed of only by a court of appeal. ***" 4.1. Drawing similitude Sri Sunil Mishra, learned Standing Counsel submitted that the petitioner herein seeks to set up adjudication of factual dispute whether there is suppression of transactions or fraud element involved in such transactions. This apart, the petitioner attempted to circumvent the process of alternative remedy only to by-pass the rigours of conditions hedged for filing appeal and absence of sufficient reason demonstrating delay in approaching this Court. Thus, in sum and substance the learned Standing Couns....
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....iling appeal for further period of thirty days in terms of sub-section (4). Since this writ petition is filed even much after the condonable period envisaged under the said provision, the writ petition is not maintainable. 6.3. This Court is taken to take note of Tata Steel Ltd. Vrs. Raj Kumar Banerjee, 2025 INSC 639. After review of a pertinent decisions, the Hon"ble Supreme Court of India having regard to period of limitation stipulated in Section 61 of the Insolvency and Bankruptcy Code, 2016, observed as follows: "10. 4. In the present case, Respondent No.1 was neither a party to the proceedings before the NCLT nor privy to the CoC deliberations, and became aware of the order only upon its subsequent disclosure. However, it is evident that the Company Secretary of the Corporate Debtor duly informed the listing departments of both NSE and BSE about the NCLT order dated 07.04.2022 within 30 minutes of its pronouncement. Hence, the limitation period for filing the appeal commenced on 07.04.2022 and expired on 07.05.2022. Notably, 07.05.2022 fell on the first Saturday of the month, which is a working day for the Registry of the NCLAT. Even otherwise, the benefit of Section 4 of ....
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....ingly, the second issue is answered by us. 12. In view of the foregoing, the order passed by the NCLAT condoning the delay in filing the appeal, is ultra vires and liable to be set aside. 13. Before parting, we may observe that time is of the essence in statutory appeals, and the prescribed limitation period must be strictly adhered to. Even a delay of a single day is fatal if the statute does not provide for its condonation. As held by us, the NCLAT has no power to condone delay beyond the period stipulated under the statute. Allowing condonation in such cases would defeat the legislative intent and open the floodgates to belated and potentially frivolous petitions, thereby undermining the efficacy and finality of the appellate mechanism." 6.4. It is brought to the notice that Division Bench taking cognizance of the provisions under Section 169 of the GST Act with respect to service of notice via Common Goods and Services Tax Electronic Portal in the case of M/s. Rahul Spares Pvt. Ltd. Vrs. Chief Commissioner of C.T. & GST and others in W.P.(C) No.9373 of 2025, disposed of vide Order dated 08.04.2025 held as follows : "5. It leads to another point pertaining to delay and la....
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.... the Constitution, it is unfathomable as to how the High Court can take a different approach in the matter in reference to Article 226 of the Constitution. The principle underlying the rejection of such argument by this Court would apply on all fours to the exercise of power by the High Court under Article 226 of the Constitution. 15. We may now revert to the Full Bench decision of the Andhra Pradesh High Court in Electronics Corporation of India Ltd. Vrs. Union of India, 2018 (361) ELT 22(AP) which had adopted the view taken by the Full Bench of the Gujarat High Court in Panoli Intermediate (India) Pvt. Ltd. Vrs. Union of India and Ors., AIR 2015 Guj 97 and also of the Karnataka High Court in Phoenix Plasts Co. Vrs. Commissioner of Central Excise (Appeal-I), Bangalore, 2013 (298) ELT 481 (Kar). The logic applied in these decisions proceeds on fallacious premise. For, these decisions are premised on the logic that provision such as Section 31 of the 1995 Act, cannot curtail the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. This approach is faulty. It is not a matter of taking away the jurisdiction of the High Court. In a given case, the Assessee m....