Facts of the Case

The petitioner, M/s Punit Kumar Choubey (GSTIN/Temp ID 10BCVPCI404N1ZT), had claimed input tax credit of Rs.3,78,624.23 each under CGST and SGST, whereas the GSTR-2A from his supplier showed a credit of only Rs.93,825.77. After an electronic notice dated 17.08.2021 and two reminders went unanswered, a show cause notice with a Form GST DRC-01 summary was issued on 08.11.2021 fixing 07.12.2021 as the hearing date; the petitioner did not appear, and an order under Section 73(9) of the BGST Act was passed on 10.12.2021, uploaded electronically the same day. The appeal was filed only on 10.07.2022 — a delay of over seven months — and was rejected as time-barred.

Issues Involved

  1. Whether the writ court could interfere with an ex parte assessment order and a time-barred appeal rejection under Section 107 of the BGST Act, where the assessee had not availed the statutory appellate remedy within time even after accounting for the Supreme Court's COVID-limitation extension order.

Petitioner's Arguments

  • The assessment order itself was passed ex parte, and this ought to have been examined by the High Court despite the appeal being time-barred, since the appellate order had not decided the matter on merits.

Respondent's Arguments

  • A detailed counter affidavit showed the petitioner was given a notice and repeated reminders (17.08.2021, 06.09.2021, 16.09.2021) plus a formal show cause notice with a hearing date, none of which were availed of by the petitioner, before the ex parte order was passed on 10.12.2021 and duly uploaded on the common portal.
  • Even applying the Supreme Court's Suo Motu Writ Petition (C) No.3 of 2020 order excluding limitation from 15.03.2020 to 28.02.2022, and the further 90 days it granted, the appeal ought to have been filed by 28.06.2022 at the latest (accounting for Section 107(4)'s one-month condonable extension), but was filed only on 10.07.2022, twelve days late even on that most generous computation.

Court Order / Findings

  • The record showed the petitioner was afforded a notice and repeated reminders before the ex parte order dated 10.12.2021 was passed under Section 73(9) of the BGST Act, and its summary was duly uploaded on the common portal the same day.
  • Applying the Supreme Court's COVID-limitation order in Re: Cognizance for Extension of Limitation together with Section 107(4)'s one-month condonable extension, the outer limit for filing the appeal was 28.06.2022, and the appeal filed on 10.07.2022 was still twelve days late even on that computation.
  • Citing State of H.P. v. Gujarat Ambuja Cement Ltd., the Court reiterated that writ jurisdiction under Article 226 is discretionary and will not ordinarily be exercised to bypass an available statutory remedy absent breach of natural justice, want of jurisdiction, or infringement of fundamental rights — none of which was made out here.
  • It is trite law that where a statute prescribes a specific delay-condonation period, that period cannot be extended by the appellate authority or by the High Court under Article 226.
  • Finding no jurisdictional error or natural-justice violation, and the gross delay standing against the petitioner, the writ petition was dismissed.

Important Clarification

Where a taxing statute such as the BGST/CGST Act prescribes a fixed appeal period with a capped condonable extension under Section 107(4), neither the appellate authority nor the High Court under Article 226 can extend that limit further — not even by invoking the Supreme Court's COVID-era suo motu limitation-extension order, once that order's own outer limit has also been exceeded. A writ against an ex parte assessment order will not succeed merely because it was ex parte, if the assessee was afforded notice and hearing opportunities and simply failed to avail the statutory remedy in time.

Sections Involved

  • Section 73(9), BGST Act, 2017 – ex parte determination and demand of tax not paid, other than by reason of fraud.
  • Section 107(4), BGST Act, 2017 – three-month period for filing appeal, extendable by a further one month on sufficient cause, with no power to condone delay thereafter.

Decision – In Favour of

In favour of the Department — the writ petition against both the ex parte assessment order and the time-barred appeal rejection was dismissed.

Case Details

High Court of Judicature at Patna; Civil Writ Jurisdiction Case No.9975 of 2023; Coram: Hon'ble The Chief Justice K. Vinod Chandran and Hon'ble Mr. Justice Partha Sarthy; Order dated 10.08.2023; CNR not indicated on the order copy.

Link to Download the Order

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