The Rajasthan High Court in Malik Khan v. Chief Commissioner GST and Central Excise, (Jaipur Zone), Assistant Commissioner, Circle Jaisalmer, Jodhpur I, [Civil Writ Petition No. 2785/2023 decided on 03.05-2023], dismissed the present petition on the ground of expiry of limitation of filing an appeal.
FACTS
Desert Gateway Resorts, (hereinafter referred to as the “Petitioner”), is a proprietor-firm engaged in the hospitality sector industry.. The Chief Commissioner GST and Central Excise, Jaipur Zone, and Assistant Commissioner, Circle Jaisalmer, Jodhpur I, (hereinafter referred to as the “Respondent”) on 29.12.2021, intimated the Petitioner, to ascertain the tax liability for the period from July 2017 to March 2018, under Section 73(5) of the Central Goods and Services Act, 2017 (hereinafter referred to as the “CGST Act”).
The Petitioner failed to respond to the intimation letter and subsequently, the Respondent issued a show cause notice on 24.01.2022, under Section 73 of the CGST Act. The Petitioner did not file the reply and hence, an Order was passed on 16.02.2022 (hereinafter referred to as the “Impugned Order”)confirming the demand of Rs. 15,10,570/- (Rupees Fifteen Lakhs Ten Thousand Five Hundred Seventy Only).
In addition to the above, the Order also stated that in case the Petitioner failed to pay the demand by 17.05.2022, proceedings to recover the outstanding dues would be initiated against the Petitioner herein.
Being aggrieved and dissatisfied by the Impugned Order, the Petitioner has filed the present petition.
ISSUES BEFORE THE HIGH COURT
Whether a writ petition can be entertained on the ground that the limitation period of filing appeal against the Impugned Order has lapsed?
CONTENTIONS OF THE PARTIES
The Petitioner contended that the Impugned Order is patently illegal, without jurisdiction and against the principles of natural justice and equity. Moreover, the Respondent has not provided the reason for raising and confirming the demand. Furthermore, no annexure has been attached in the Impugned Order.
It was submitted that the Impugned Order is devoid of reasons and, it also violates the principle of natural justice of fair hearing and hence, the Impugned Order is liable to be set aside.
It was further argued that as the Impugned Order is a non-speaking order, and that the Respondent has failed to comply with the provisions of Section 73 of the CGST Act.
The Petitioner also submitted that the time period for filing an appeal had expired and hence, the writ petition should be entertained and decided on merits and the Petitioner cannot be left remedy-less.
On the contrary, the Respondent submitted that the Petitioner has concealed the credit of Rs. 56,74,868/- (Rupees Fifty-Six Lakhs Seventy-Four Thousand Eight Hundred Sixty-Eight Only). It was also brought to the notice of the High Court that the Petitioner failed to reply to the summons or make any representation, hence, as the Petitioner failed to file a proper GSTR for the Financial Year 2017-18, demand of Rs. 15,10,570/- (Rupees Fifteen Lakhs Ten Thousand Five Hundred Seventy Only) was confirmed including tax, penalty and interest.
It was also argued that the remedy of statutory appeal is available to the Petitioner and thus, the present petition is not liable to be entertained.
DECISION AND FINDINGS
The High Court observed that the period for filing an appeal against the Impugned Order had expired and also that the Petitioner has almost, after eight months from the Impugned Order, has filed the present petition.
The High Court relied on the case of Assistant Commissioner (CT) LTU, Kakinada & Ors. Vs. M/s. Glaxo Smith Kline Consumer Health Care Limited [Civil Appeal No.2413/2020] and held that after the expiry of the limitation period of filing the appeal, the writ petition challenging the Impugned Order is not maintainable, and therefore, dismissed the petition.
AMLEGALS REMARKS
The High Court in the present case, dismissed the petition challenging the Impugned Order which was in violation of the principles of natural justice. The High Court was of the opinion that when the limitation period for preferring an appeal expires, a writ petition cannot be entertained.
Thus, the Petitioner cannot sleep over its rights and then claim a remedy. Hence, the limitation period of availing the statutory remedy has to be adhered.
– Team AMLEGALS assisted by Ms. Ananya Pandey (Intern)
For any query or feedback, please feel free to get in touch with himanshi.patwa@amlegals.com or rohit.lalwani@amlegals.com
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