Facts of the Case

Prashant Luthra, Director of Brite Neon Signs Pvt. Ltd., approached the Patna High Court seeking to quash an order dated 08.12.2021 passed under Section 73(9) of the Bihar Goods and Services Tax Act, 2017. Under Section 107(4) BGST Act, an appeal against such an order was maintainable within three months, extendable by a further month on a delay-condonation application. No appeal had been filed within this window, and the writ petition itself was filed with a delay of almost a year. Meanwhile, the Central Board of Indirect Taxes and Customs issued Notification No. 53 of 2023-Central Tax dated 02.11.2023, providing a special procedure to file delayed appeals against orders passed under Sections 73 and 74 on or before 31.03.2023, subject to specified pre-deposit conditions, with the appeal to be filed on or before 31.01.2024.

Issues Involved

  1. Whether the High Court, exercising writ jurisdiction, could condone delay in filing a statutory appeal beyond the period prescribed under Section 107(4) BGST Act.
  2. Whether CBIC Notification No. 53/2023 permitted the petitioner to file a delayed appeal against the Section 73(9) order despite the statutory limitation having expired.
  3. What conditions under the Notification had to be satisfied for such a delayed appeal to be maintainable.

Petitioner's Arguments

  • The petitioner sought quashing of the Section 73(9) assessment order directly in writ jurisdiction, having missed the statutory appeal window.
  • Reliance was placed on the newly issued CBIC Notification No. 53/2023, which extended the time for filing appeals against Section 73/74 orders passed on or before 31.03.2023.

Respondent's Arguments

  • The State authorities did not seriously contest the availability of the amnesty relief under Notification No. 53/2023, and the order proceeds on the basis of the special procedure it prescribes rather than any factual defence to the underlying demand.

Court Order/Findings

  • The Court reiterated settled law that where a statute prescribes a specific limitation period for a delayed appeal, neither the Appellate Authority nor the High Court under Article 226 can condone delay beyond that period.
  • CBIC Notification No. 53/2023 extended the time to file an appeal against Section 73/74 orders passed on or before 31.03.2023, up to 31.01.2024, subject to payment of the admitted tax/interest/penalty in full and 12.5% of the disputed tax (capped at Rs.25 crore, with at least 20% debited from the Electronic Cash Ledger).
  • Since the petitioner had not filed any appeal, the Court held it was proper to permit an appeal to be filed satisfying the conditions of paragraph 3 of the Notification.
  • The petitioner was directed to file the appeal against the 08.12.2021 order by 31.01.2024, complying with the payment conditions, whereupon the appeal would be considered on merits.
  • The writ petition was disposed of on these terms, without any finding on the correctness of the underlying Section 73(9) demand.

Important Clarification

  • Courts will not use writ jurisdiction to bypass a statutorily prescribed limitation period for filing a GST appeal, but will give effect to a subsequent CBIC amnesty notification that independently extends the appeal window.
  • Availing the benefit of Notification No. 53/2023 is conditional on payment of the admitted dues in full and 12.5% of the disputed tax (with a portion from the Electronic Cash Ledger), and no refund is granted for amounts paid in excess of these conditions until the appeal is decided.

Sections Involved

  • Section 73, Bihar Goods and Services Tax Act, 2017 — determination of tax not paid or short paid, other than by reason of fraud.
  • Section 107, Bihar Goods and Services Tax Act, 2017 — appeals to the Appellate Authority, including the limitation period under sub-section (4).
  • Notification No. 53/2023-Central Tax dated 02.11.2023 — special procedure and extended timeline for filing delayed appeals against Section 73/74 orders.

Decision – In Favour of

The outcome is disposed of with directions, in part in favour of the Assessee. The Court declined to condone the delay under ordinary writ powers but enabled the petitioner to access the CBIC amnesty window to have the appeal heard on merits, subject to the prescribed pre-deposit — no finding was rendered on the correctness of the Section 73(9) order itself.

Related Case Laws

No directly on-point case notes are currently published on this site.

Case Details

  • Court: High Court of Judicature at Patna
  • Case No.: Civil Writ Jurisdiction Case No. 3133 of 2023
  • CNR: Not available
  • Coram: Hon'ble the Chief Justice K. Vinod Chandran and Hon'ble Mr. Justice Rajiv Roy
  • Decision Date: 14 December 2023
  • Disposal Nature: Disposed of – petitioner permitted to file delayed appeal under Section 107 BGST Act per CBIC Notification No.53/2023, subject to conditions

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