Dismissed¶30

Pec Limited, v. The State Of Bihar

Patna HC29 Jul 2024CWJC/3048/2024

Case brief

AI extract

What is this about?

PEC Limited v. State of Bihar; CWJC No.3048 of 2024; Patna High Court; 29-07-2024; K. Vinod Chandran CJ; Section 107 B.G.S.T. Act appeal; limitation 17.05.2023/17.06.2023; appeal filed 26.05.2023; delay condonation application absent; pre-deposit 10% disputed tax not paid; no exemption for Government company; Circular No.53/2023 dated 02.11.2023; CBIC; additional 2.5% deposit window; orders prior to 31.03.2023; recovery in excess of 12.5%; restoration of appeal refused; Annexure-P/5; Patna Special Circle; writ petition dismissed.

What did the court decide?

Against the order dated 17.02.2023, an appeal under Section 107 of the B.G.S.T. Act was to be filed within three months (by 17.05.2023) or within one month thereafter (by 17.06.2023) with satisfactory explanation for delay. ¶22

Pec Limited, Vs The State Of Bihar — GST and Indirect Tax | Patna HC (2024)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the appellate order (Annexure-P/5) dismissing the appeal — for want of a delay condonation application and non-payment of 10% of the disputed tax — calls for interference. +1 more

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Court's answer

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Ratio / Principle

The appeal filed on 26.05.2023 was within the extended period of limitation, but there was no explanation for the delay occasioned.

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Key takeaways

Merely because the petitioner is a Government company, the assessee cannot be absolved from the liability to explain the delay before the Tribunal and satisfy it as bona fide.ratio¶23
A pre-deposit of 10% of the disputed tax amount is required under the enactment, and this was also not complied with.ratio¶24
There is no exemption from the pre-deposit requirement with respect to a Government company.ratio

Detailed headnote1 paragraphs

Patna High Court (oral judgment per K. Vinod Chandran, CJ; Partha Sarthy, J concurring), 29-07-2024, CWJC No.3048 of 2024 — PEC Limited, a 100% Central Government-owned company, challenged the dismissal of its appeal (Annexure-P/5) against an order dated 17.02.2023. Under Section 107 of the B.G.S.T. Act the appeal was due by 17.05.2023 or, with satisfactory explanation, by 17.06.2023; it was filed on 26.05.2023 within the extended period but carried no delay-condonation application or explanation, and the mandatory pre-deposit of 10% of the disputed tax was not made — for which no exemption applies to a Government company. The post-dismissal window under Circular No.53/2023 dated 02.11.2023 (additional 2.5% deposit for those who had failed to challenge orders prior to 31.03.2023) was admittedly not availed, and the alleged recovery far in excess of 12.5% afforded no ground for restoration. Held: no reason to interfere with the appellate order; writ petition dismissed.

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3048 of 2024

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PEC Limited, a Company, (100 percent owned by Central Govt.) having its office at Sri Jagat Kishore, Road No.- 8, Kankarbagh, Patna through one of its manager Finance namely Daman Preet Singh make aged about 38 years, Son of S. Tapishar Singh, Resident of 42 Masjid Lane Jangpura Bhogal, New Delhi- 110014

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... ... Petitioner/s

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Versus

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The State of Bihar through the Principal Secretary cum Commissioner, Department of State Taxes, Government of Bihar, Patna.

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The Additional Commissioner of State Taxes (Appeals), Central Division, Patna.

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The Assistant Commissioner of State Taxes, Patna Special Circle, Patna.

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The Joint Commissioner of State Taxes, Patna Special Circle, Patna.

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... ... Respondent/s

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Appearance :

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For the Petitioner/s : Mr. Divyam Verma, Advocate For the Respondent/s : Mr. Vivek Prasad, Government Pleader (7)

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CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

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Date : 29-07-2024

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The writ petition is filed against Annexure-P/5 order dismissing the appeal on two grounds, one that no delay condonation application was filed and the other that 10% of the disputed tax has not been paid.

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The learned Counsel for the petitioner submits that the appeal was filed within the extended period of limitation. There was also a Circular No.53/2023 dated 02.11.2023, which provided a delayed appeal to be filed upto 31.01.2024, if 12.5% of the disputed tax is paid. The learned Counsel submits that

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Patna High Court CWJC No.3048 of 2024 dt.29-07-2024 2/3

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subsequently, recovery has been made far in excess of the 12.5%, in which circumstance, the appeal may be restored and allowed to be disposed of on merits.

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The learned Government Advocate on the other hand submits that there is no provision by which the deposit of amounts required for maintaining the appeal can be waived. The pre-deposit having not been made and also no satisfactory explanation having been given for the delay, there can be no restoration of the appeal.

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The order which was appealed against was dated 17.02.2023, and in such circumstances, under Section 107 of the B.G.S.T. Act, an appeal ought to have been filed within three months i.e. by 17.05.2023 or within one month there from i.e. by 17.06.2023, with a satisfactory explanation for the delay occasioned.

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Admittedly, the appeal was filed on 26.05.2023 within the extended period of limitation, however, there was no explanation for the delay occasioned. Merely because the petitioner is a Government company, the assessee cannot be absolved from the liability to explain the delay before the Tribunal and satisfy it as having occurred bonafide .

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Further, a pre-deposit of 10% of the disputed tax amount is required under the enactment; which also was not

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Patna High Court CWJC No.3048 of 2024 dt.29-07-2024 3/3

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complied with and there is no exemption as such, with respect to a Government company.

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The appeal was dismissed on 17.07.2023, later to that, Circular No.53/2023 dated 02.11.2023 was issued by the Central Board of Indirect Taxes and Customs. This permitted a window, for the assessees who have failed to challenge orders prior to 31.03.2023, by depositing an additional amount of 2.5% for the purpose of maintaining an appeal. Admittedly, the assessee did not avail of such remedy also.

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At this stage, there can be no absolution of the assessee either from the fact that the pre-deposit was not made and also from satisfying the Tribunal about the delay occasioned.

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