TaxTMI 
TaxTMI 
2025 (8) TMI 987
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....tion No.56/2023-Central Tax, dated 28th December, 2023 vide Annexure-7 by the Government of India in Ministry of Finance (Department of Revenue) Central Board of Indirect Taxes and Customs extending the period of limitation to pass an order under Section 73 by way of filing this writ petition invoking provisions under Articles 226 & 227 of the Constitution of India. 2. Facts as adumbrated by the writ petitioner reveals that upon scrutiny of returns filed by the petitioner-assessee under Section 39 of the GST Act, in response to notice dated 18.03.2021 in GST ASMT-10 on the allegation of understatement of tax liability in terms of facts and figures disclosed in Form GSTR-3B as against Form GSTR-1, the Assistant Commissioner of State Tax, Dhenkanal Circle, Angul, Odisha-opposite party no. 2 a reply in Form GST ASMT-11 under Section 61 was submitted on 30.06.2021 and payment made in Form GST DRC-03 contemplated under Rule 142(2) and Rule 142(3) was also furnished. Nevertheless, a show cause notice dated 18.05.2024 in Form DRC-01 was issued invoking Section 73. In absence of any reply, the adjudicating authority proceeded to pass order dated 18.05.2024. Accordingly, a summary of the....
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....d from ground no. 'S' of paragraph-18 of the writ petition as follows: "S. For that the petitioner is not liable to pay tax has demand under Annexure-4. The petitioner has effected tax free/exempted supplies during the year. However, due to clerical mistake and inadvertently, the tax free and exempted supplies were wrongly reported in GSTR 1 as taxable supplies, giving rise to the difference in tax liability declared in GSTR 1 vis-à-vis GSTR 3B." 6.1. In view of clear and candid admission of the petitioner with respect to mistake of fact in claiming tax free and exempted supplies, this Court is not inclined to entertain this writ petition, for such factual aspect is subject to scrutiny and appreciation of evidence by the fact-finding authorities empowered under the GST Act and Rules framed thereunder. 6.2. Further scrutiny of writ petition does not disclose any plausible reason, much less reason, to demonstrate the circumstances which prevented the petitioner from approaching this Court within reasonable period challenging the order under Section 73 of the GST Act. Whereas said order was framed on 21st August, 2024, the petitioner has filed this writ petition ....
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....on of third party rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction. We do not think it necessary to burden this judgment with reference to various decisions of this Court where it has been emphasised time and again that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action complained of is unconstitutional or illegal. We may only mention in the passing two decisions of this Court one in Ramana Dayaram Shetty Vrs. International Airport Authority of India, (1979) 3 SCC 489 = AIR 1979 SC 1628 = (1979) 3 SCR 1014 and the other in Ashok Kumar Mishra Vrs. Collector, (1980) 1 SCC 180 = AIR 1980 SC 112 = (1980) 1 SCR 491. We may point out that in R.D. Shetty case, even though the State action was held to be unconstitutional as being violative of Article 14 of the Constitution, this Court refused to grant relief to the petitioner on the ground that the writ petition had been filed by the petitioner more than five months after the acceptance of the tender of the fourth respond....
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....scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons- who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold." 6.8. In Maharashtra SRTC Vrs. Balwant Regular Motor Service, AIR 1969 SC 329 it has been observed as follows: ....
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....p of about 11 months from the date of impugned order without ascribing any reason therefor, leads this Court to opine that because of the inordinate delay and laches, and the non-disclosure of circumstance to by-pass the alternative remedy available under the statute do not warrant exercise discretion in favour of the petitioner by issue of writ. 7. Another aspect which requires to be taken note of is that, the prayers of the petitioner run as follows: "Under the aforesaid circumstances it is prayed therefore that this Hon'ble Court may be graciously pleased to:- a. Admit the writ petition; b. Issue Rule nisi calling upon the opposite parties as to why Notification dt.31.03.2023 vide Annexure-6 and 28.12.2023 vide Annexure-7 extending the time limit to pass Order under Sub-Section 10 of Section 73 of the OGST/CGST Act, 2017 is in clear transgression power available U/s. 168 r/w Section 73 (10) of the OGST/CGST Act, 2017, therefore the said impugned Notification are illegal, arbitrary, without jurisdiction and is liable to be quashed. c. Issue Rule nisi calling upon the opposite parties as to why show cause notice dated 18.05.2024 and the impug....
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.... (1984) 2 SCC 436, S.T. Muthusami Vrs. K. Natarajan, (1988) 1 SCC 572, Rajasthan SRTC Vrs. Krishna Kant, (1995) 5 SCC 75, Kerala SEB Vrs. Kurien E. Kalathil, (2000) 6 SCC 293, A. Venkatasubbiah Naidu Vrs. S. Chellappan, (2000) 7 SCC 695, L.L. Sudhakar Reddy Vrs. State of A.P., (2001) 6 SCC 634, Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha Vrs. State of Maharashtra, (2001) 8 SCC 509, Pratap Singh Vrs. State of Haryana, (2002) 7 SCC 484 and GKN Driveshafts (India) Ltd. Vrs. ITO, (2003) 1 SCC 72.] *** 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, AIR 1964 SC 1419, Titaghur Paper Mills Co. Ltd. Vrs. State of Orissa, (1983) 2 SCC 433 and other similar judgments that the High Court will no....