TaxTMI 
TaxTMI 
2025 (11) TMI 760
X X X X Extracts X X X X
X X X X Extracts X X X X
....essment Years 2021-22 and 2022-23 respectively. 3. Shri Agrawal, learned counsel for the petitioner has submitted that the impugned orders were passed ex-parte, without notice to the petitioner. The petitioner assailed the said orders by filing an appeal which was dismissed on the ground of limitation. 4. Being aggrieved, the petitioner preferred a writ petition bearing Writ-Tax No.330 of 2024 and the said writ petition was allowed vide order dated 10.04.2025 by a Coordinate Bench of this Court and the Appellate Authority was directed to decide the application for condonation of delay considering the decisions of the Apex Court. 5. The submission is that the order passed by the Appellate Authority is clearly vague and without jurisdiction inasmuch as the High Court in Writ Tax No.330 of 2024 had directed the Appellate Authority to consider and decide the appeal afresh considering the decisions of the Apex Court in M.P. Steel Corporation v. Commissioner of Central Excise, (2015) 7 SCC 58 and Suryachakra Power Corporation Limited v. Electricity Department Represented by Its Superintending Engineer, Port Blair and others, (2016) 16 SCC 152, but the Appellate Authority dismiss....
X X X X Extracts X X X X
X X X X Extracts X X X X
....plaint of Section 107(6)(b) of the GST Act and dismissed the appeal. It is urged that merely pleadings in the petition that the petitioner does not have the capacity to pay 10% of pre-deposit as envisaged in the GST Act does not automatically operate as a way forward for the petitioner to get his appeal heard on merit. 10. It is submitted that at no point of time either when the petitioner had preferred Writ-Tax No.220 of 2024 before the Division Bench of this Court or when the petitioner filed Writ Tax No.330 of 2024, the petitioner did not seek a relief of exemption from making the pre-deposit. The record would indicate that once the Division Bench of this Court had declined to interfere by means of the order dated 04.09.2024 and directed the petitioner to avail the remedy of appeal, it was incumbent upon the petitioner to have made the pre-deposit with the appeal, however, the petitioner choose to assail the order of the Division Bench before the Apex Court which needless to say was dismissed. 11. In this view, the petitioner while preferring the writ petition ought to have claimed (if permissible in law) exemption from pre-depositing 10%, however, it was not made. Accordi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (iii) Issue a writ, order or direction in the nature of writ of mandamus directing the opposite party no.2 to provide sufficient time for preparation of the reply to the show cause notice and also provide personal hearing before completion of adjudication proceedings." It is the case of the petitioner that adjudication proceedings for the assessment year 2021-2022, 2022-2023 were taken ex-parte against the petitioner as the petitioner was not given any report of the SIB which the petitioner has specific plea requested by his letter dated 30.4.2024. Since relevant documents for replying to the show cause notice were not supplied to the petitioner he was handicapped and prejudiced. It has been stated in the impugned order that the petitioner was informed by letter dated 11.5.2024 on the portal to collect the copies of the SIB report from the office of opposite party no.2 and to submit his reply by 10.6.2024, however, such letter dated 11.5.2024 was posted at wrong section of portal and as such it could not be seen by the petitioner. The petitioner having been denied opportunity of hearing the order impugned are vitiated and therefore liable to be set asi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nity of hearing, but the same was rejected on 04.11.2024, hence, the appellant/petitioner is submitting his appeal without pre-deposit of 10% of the huge disputed tax, hence, the delay be condoned and the appeal be heard on merits. (v) It is also not disputed that despite making this contention, the appeal of the petitioner was dismissed on the ground of delay which further prompted the petitioner to file and assail the order relating to dismissal by filing Writ-Tax No.330 of 2024. 15. Now, in the second round, a Coordinate Bench of this Court vide order dated 10.04.2025 allowed the Writ Petition No.330 of 2024 and directed the appellate Authority to consider the appeal as well as application for condonation of delay in light of the dictum of the Apex Court in M.P. Steel Corporation (supra) and Suryachakra Power Corporation Limited (supra). 16. At this very stage, it will be relevant to notice Paragraph 3 to 15 of the order passed by the Coordinate Bench of this Court dated 10.04.2025 in Writ Tax No.330 of 2024, which reads as under:- "3. Contention of learned counsel for the petitioner is that an ex-parte order came to be passed by respondent no.3 in purpor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Limitation Act as has been held in the case of M.P. Steel Corporation vs. Commissioner of Central Excise; (2015) 7 SCC 58. He further argues that the order under Section 74 of the GST Act is wholly arbitrary for the reasons that in the show-cause notice, there was no assertion/allegation that there exist any material so as to justify invoking of larger period of limitation under Section 74. He argues that to invoke the jurisdiction under Section 74, in contradiction to the powers conferred by Section 73, it is essential that power under Section 74 can only be invoked when tax is not paid or short paid by reasons of fraud or any wilful misstatement or suppression of facts. He argues that there were no allegation, leave alone finding, in the impugned order to justify invocation of power under Section 74 of the GST Act. He further argues that even the documents proposed to be relied upon being the SIB report, was never provided and thus, for all the reasons, the impugned orders deserve to be quashed. 8. Learned Standing Counsel, based upon instructions and counter affidavit, argues that the SIB report was directed to be collected by the assessee, however, he did not do so....
X X X X Extracts X X X X
X X X X Extracts X X X X
....writ Court vide order dated 10.04.2025 was in respect of the limitation and not in respect of exemption of pre-deposit of 10%, hence, in absence of pre-deposit, the appellate Authority dismissed the appeal being not in order. 18. This Court finds that as far as the issue of pre-deposit is concerned, though the petitioner had taken it as a ground of invoking the writ jurisdiction of this Court by filing writ petition bearing Writ Tax No.220 of 2024 which was dismissed by relegating the petitioner to approach the Appellate authority. However, at no point of time, it was ever pressed or a specific relief was sought by the petitioner to exempt the petitioner from making the pre-deposit. 19. It is relevant to notice that while the petitioner had assailed the order of the Division Bench before the Apex Court which was also dismissed. Thereafter, the petitioner filed an appeal and in his appeal, an application for seeking condonation of delay was moved which is at running Page No.254 of the paper-book. What is important is Paragraph 2 to 4 of the said application, which reads as under:- "2. That the disputed tax is of so huge amount that the appellant is unable to deposit 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the disputed tax as bank account is also seized by the respondent against the recovery BUT Honorable Supreme Court rejected the prayer on date 4.11.2024 hence the appellant is filing this appeal without depositing the required 10% of the disputed tax." 21. It is clear from the aforesaid averments made by the petitioner that it was specifically aware that it was required to make a pre-deposit with the appeal. Though the petitioner had taken grounds that the petitioner did not have means to make the pre-deposit, hence, it chose to file the writ petition in the first place which was dismissed and its attempt to assail the order before the Apex Court also failed. 22. Apparently, the choice of the petitioner to avail the remedy of writ petition was squarely on the premise that the demand was exorbitant and the petitioner did not have means to pay and that he was not granted an opportunity to contest it on merits. 23. This is a clear case with indication that the petitioner had filed the writ petition in order to avoid making the pre-deposit, hence, the petitioner was availing the remedy of writ. Once the writ petition was dismissed naturally, the same issue would have been rais....
X X X X Extracts X X X X
X X X X Extracts X X X X
....SLP was dismissed and even not having prayed for it before the Appellate Authority by moving a separate application and even when the petitioner filed Writ Tax No.330 of 2024. 28. In the aforesaid circumstances, this Court is of the clear view that the petitioner cannot be permitted to file successive writ petitions in respect of a remedy or relief which was always known and available to the petitioner but not having claimed and even otherwise if it was taken then the petitioner ought to have raised all his claim at one place failing which the principles of Order II Rule 2 CPC are attracted to the detriment of the petitioner. [See : Sarguja Transport Service v. State Transport Appellate Tribunal, M.P., Gwalior and others, (1987) 1 SCC 5] and the petitioner cannot be permitted to raise the said issue later by a subsequent petition filed under Article 226/227 of the Constitution of India. 29. There is another way to look at the issue inasmuch as the petitioner having informed the appellate authority of the fact that it was unable to make the pre-deposit and the appeal was dismissed on the ground of limitation then while preferring the Writ Tax No.330 of 2024, the petitioner sho....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. [...]" (Emphasis supplied) 137. The above proposition of law came to be known as the 'Henderson Principle' and underwent significant evolution, adapting to changing judicial landscapes and procedural requirements. The House of Lords in Johnson v. Gore Wood & Co, [2002] 2 A.C. 1, upon examining the 'Henderson Principle' authoritatively approved it with the following observations:- (i) Lord Bingham of Cornhill integrated the principle with the broader do....
X X X X Extracts X X X X
X X X X Extracts X X X X
....one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not [...]" (Emphasis supplied) (ii) Lord Millett construing the Principle held that it does not belong to the doctrine of res-judicata in the strict sense but rather was analogous to the doctrine, as it goes a step further to encompass even those proceedings that either culminated into a settlement or issues which had never been adjudicated previously in order to protect the process of the court from abuse and the defendant from oppression. The relevant observations read as under:- "As the passages which I have emphasised indicate, Sir James Wigram V-C did not consider that he was laying down a new principle, but rather that he was explaining the true extent of the existing plea of res judicata. Thus he was careful to limit what he was saying to cases which had proceeded to judgment, and not, as in the present case, to an out of court settlement. Later decisions have doubted the correctness of treating the principle as an application of the doctrine of res judicata, while describing it as an extension of the doctrine or analogous to it ... But these various....
X X X X Extracts X X X X
X X X X Extracts X X X X
....under:- "The principle in Henderson v. Henderson has always been thought to be directed against the abuse of process involved in seeking to raise in subsequent litigation points which could and should have been raised before. There was nothing controversial or new about this notion when it was expressed by Lord Kilbrandon in the Yat Tung case [1975] A.C. 581. The point has been taken up in a large number of subsequent decisions, but for present purposes it is enough to refer to the most important of them, Johnson v. Gore-Wood & Co [2002] 2 A.C. 1, in which the House of Lords considered their effect. This appeal arose out of an application to strike out proceedings on the ground that the plaintiffs claim should have been made in an earlier action on the same subject matter brought by a company under his control. Lord Bingham of Cornhill took up the earlier suggestion of Lord Hailsham of St Marylebone LC in Vervaeke (formerly Messina) v. Smith [1983] 1 A.C. 145, 157 that the principle in Henderson v. Henderson was "both a rule of public policy and an application of the law of res judicata". He expressed his own view of the relationship between the two at p. 31 as follows: "H....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in a litigation for one and the same cause. 141. The Henderson Principle was approvingly referred to and applied by this Court in State of U.P. v. Nawab Hussain, (1977) 2 SCC 806 as the underlying principle for res-judicata and constructive res-judicata for assuring finality to litigation. The relevant observations read as under:- "3. The principle of estoppel per rem judicatam is a rule of evidence. As has been stated in Marginson v. Blackburn Borough Council [[1939] 2 K.B. 426 at p. 437], it may be said to be "the broader rule of evidence which prohibits the reassertion of a cause of action". This doctrine is based on two theories : (i) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest of the individual that he should be protected from multiplication of litigation. It therefore serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action, for otherwise t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... against him in the present appeal is in a sense a somewhat technical or artificial rule prescribed by the Code of Civil Procedure. This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically, even this view is founded on the same considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy [...]" (Emphasis supplied) 143. In Shankara Coop. Housing Society Ltd. v. M. Prabhakar, (2011) 5 SCC 607, this Court held that the ground of non-compliance of statutory provision which was very much available to the parties to raise but did not raise it as one of the grounds, cannot be raised later on and would be hit by the principles analogous to constructive res judicata. The relevant observations read as under:- "89. In the present case, it ....