Dismissed¶33

Rahul Kumar v. The Union of India

GST – Cancellation of registration – Writ under Article 226

Patna HC8 Jan 2024CWJC/7678/2023

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Case brief

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What is this about?

Patna High Court CWJC 7678 of 2023, K. Vinod Chandran CJ and Rajiv Roy J, 08-01-2024; GST registration cancellation; Bihar Goods and Services Tax Act 2017 S.107 appeal limitation and condonation; Suo Motu Writ Petition (C) No. 3 of 2020 In Re: Cognizance For Extension of Limitation pandemic limitation saving; Article 226 alternate remedy doctrine; lack of diligence; show-cause notice date prior to hearing date; natural justice violation raised belatedly; non-filing of returns for continuous six months; remand useless formality; writ petition dismissed.

What did the court decide?

The extraordinary jurisdiction under Article 226 will not be invoked where an alternate remedy exists and the assessee has not been diligent in availing it within the stipulated time. ¶28

Rahul Kumar Vs The Union of India — GST and Indirect Tax | Patna HC (2024)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the writ court should exercise jurisdiction under Article 226 to challenge the cancellation of GST registration when an alternate statutory appeal under S.107 BGST Act existed and was availed with gross delay. +1 more

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Court's answer

The extraordinary jurisdiction under Article 226 will not be invoked where an alternate remedy exists and the assessee has not been diligent in availing it within the stipulated time.

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Ratio / Principle

Taking the Supreme Court's pandemic limitation saving into account, the appeal ought to have been filed on or before 30.06.2022 (with a delay-condonation application within one month thereafter); the appeal filed on 06.12.2022 was about five months beyond even that extended period.

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Key takeaways

Although there was an illegality in the notice showing a hearing date prior to the notice date, the petitioner did not respond to or seek adjournment of the notice, did not contend it was not received, and could have raised the natural justice violation in appeal; at nearly three years' distance he cannot seek a fresh show-cause notice.ratio¶29
A remand would be a useless formality because the stated ground of cancellation was non-filing of returns for a continuous period of six months, and the petitioner does not claim to have filed any return during that period.ratio¶31

Detailed headnote1 paragraphs

GST — Cancellation of registration — Writ under Article 226 — Maintainability. Petitioner challenged cancellation of his GST registration (order dated 14.01.2021, Annexure-3) alleging that the show-cause notice dated 29.12.2020 fixed a hearing date (24.12.2020) prior to its own date. Held, dismissing the petition: (i) an alternate statutory appeal lay under S.107 of the Bihar GST Act, 2017; applying the limitation saving ordered by the Supreme Court in Suo Motu W.P.(C) No.3 of 2020 (In Re: Cognizance For Extension of Limitation), the appeal was due by 30.06.2022, yet was filed only on 06.12.2022 — about five months late even on the extended timeline — so Article 226 would not be exercised where alternate remedies exist and the assessee was not diligent; (ii) though the notice defect amounted to an illegality, the petitioner neither replied nor sought adjournment, did not deny receipt, and could have raised the natural-justice ground in appeal; (iii) as the cancellation rested on non-filing of returns for six continuous months, which the petitioner did not controvert, remand would be a useless formality.

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.7678 of 2023

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Rahul Kumar, Son of Prem Nath, Resident of House No. 115/251, Sheikhpura, Near Icon Public School, B.V. College, Patna- 800014

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... ... Petitioner/s

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Versus

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The Union of India through the Secretary, Ministry of Finance.

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The Chief Commissioner, Central GST & Central Excise, Ranchi Zone, Patna.

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The Commissioner, Central GST Control Excise, Patna- 1, Patna.

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The Additional Commissioner, GST & CX (Appeals), Patna.

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The Superintendent Phulwarisharif Range, CGST & Control Excise Patna Central, Patna.

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The Assistant Commissioner, CGST & CX, Patna West Division, Patna.

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... ... Respondent/s

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====================================================== Appearance : For the Petitioner/s : Mr.Ashish, Advocate For the Respondent/s : Dr. K.N. Singh, Additional Solicitor General Mr. Anshuman Singh, Sr. SC, CGST & CX

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======================================================

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CORAM: HONOURABLE THE CHIEF JUSTICE

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and HONOURABLE MR. JUSTICE RAJIV ROY ORAL JUDGMENT

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(Per: HONOURABLE THE CHIEF JUSTICE)

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Date : 08-01-2024

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The petitioner is aggrieved with the cancellation of registration by Annexure-3 order passed on 14.01.2021. The vehement contention of the learned counsel for the petitioner is

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Patna High Court CWJC No.7678 of 2023 dt.08-01-2024 2/4

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that the show-cause notice for cancellation of registration dated 29.12.2020 directed appearance on 24.12.2020 and the order of cancellation of registration was passed on 14.01.2021. Learned counsel for the petitioner contends that the proceedings are fraught with illegality in so far as no notice having been issued.

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Admittedly, there is an appellate remedy which the petitioner availed with gross delay.

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Section 107 of the Bihar Goods and Services Tax Act, 2017 (“BGST Act” hereafter) permits an appeal to be filed within three months and also apply for delay condonation with satisfactory reasons within a further period of one month. We have to take into account the saving of limitation granted by the Hon’ble Supreme Court in Suo Motu Writ Petition (C) No. 3 of 2020, In Re: Cognizance For Extension of Limitation. Therein, due to the pandemic situation limitation was saved between 15.03.2020 till 28.02.2022. It was also directed that an appeal could be filed within ninety days from 01.03.2022. Here, the order impugned in the appeal was dated 14.01.2021. An appeal was to be filed on or before 30.06.2022 as permitted by the Hon’ble Supreme Court and if necessary with a delay condonation application within one month thereafter. The appeal is said to have been filed only on 06.12.2022, after about five

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Patna High Court CWJC No.7678 of 2023 dt.08-01-2024 3/4

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months from the date on which even the limitation period expired. In the above circumstances, we find no reason to invoke the extraordinary jurisdiction under Article 226, especially since it is not a measure to be employed where there are alternate remedies available and the assessee has not been diligent in availing such alternate remedies within the stipulated time.

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True, there is an illegality in so far as the notice issued having shown a date prior to the date of the notice for hearing. The petitioner could have responded to the notice and asked for a further date which was not done by the petitioner. The petitioner does not have any case that the show-cause notice was not received by him. Further, it is very pertinent that the petitioner had not filed an appeal from the order of cancellation of registration in which he could very well have raised this ground of violation of principles of natural justice. As was noticed, the appeal ought to have been filed on or before 30.07.2022. The petitioner has not been diligent enough and at this distance of time almost three years after the cancellation of registration cannot seek a fresh show-cause notice to be issued. Further, it is also pertinent that the reason stated in the showcause notice for cancellation of registration is that the petitioner

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Patna High Court CWJC No.7678 of 2023 dt.08-01-2024 4/4

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has not filed returns for a continuous period of six months. The petitioner does not have any case that he had in fact filed a return in the continuous period of six months. A remand would

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be a useless formality.

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The writ petition would stand dismissed.

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(K. Vinod Chandran, CJ)

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(Rajiv Roy, J)

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P.K.P./-

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AFR/NAFR
CAV DATE
Uploading Date	11.01.2024
Transmission Date

Rahul Kumar v. The Union of India

Case brief

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Rahul Kumar v. The Union of India

Case brief

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