• Kandivali West Mumbai 400067, India
  • 022 39167251
  • support@email.com
May 9, 2023

Filing a Writ because the appeals deadline has passed is an abuse of the court’s process. HC

Filing a Writ because the appeals deadline has passed is an abuse of the court’s process. HC

Fact and issue of the case

On 29.03.2023 we had passed the following order

Learned Standing Counsel prays for and is granted ten days’ time to seek instructions whether opportunity of hearing was given to the petitioner under Section 74 of the G.S. T. Act, 2017

List this case on 10.04.2023, as fresh

Learned Additional C.S.C. does not have instructions, we, therefore, proceed to hear the matter

After hearing learned counsel for the parties and perusing the record what we find is that a show cause notice dated 10.06.202 1 was issued to the petitioner for the tax period April, 2018-March, 2019 u/s 74 of the U.P. GST Act, 2017. In the said notice, it was mentioned that the petitioner may appear before the said undersigned for personal hearing either in person or through authorized representative for representing its case on the date, time and venue if mentioned in table below. In the table mentioned in the show cause notice, last date for submission of reply was given as 12 July, 2021 but no date, time or venue mentioned for personal hearing. The petitioner admittedly did not submit any reply by 12th July, 2021 instead as pointed out by the petitioner’s counsel on 10th July, 2021 a request was made for extension of time for submitting the reply. The contention of the petitioner’s counsel is that ultimately on 8th January, 2022, petitioner uploaded the format under the heading reply to the show cause notice, wherein he did not submit any reply but requested for extension of the time limit for responding to the show cause notice. The option for personal hearing was also exercised by ticking yes against Serial No.7 of the format. However, this was done only on 8th January, 2022. The final order dated 2 1.05.2022 was passed u/s 74 of the GST Act, 2017 against which an appeal is maintainable u/s 107 of the aforesaid Act, 2017. We find that time for filing reply was extended for the petitioner firstly till 28th December, 2021 but no reply was submitted, thereafter, it was again extended on the request of the petitioner till 20th April, 2022, but no reply was submitted by the petitioner. In the interregnum, on 8th January, 2022 without submitting any reply, he had sought personal hearing. Petitioner’s counsel says that certain documents were being demanded by him which were not supplied. If it is so, then all this can be seen in appeal u/s 107

Observation of the court

We could understand if a reply was submitted by the petitioner and in such reply the petitioner took the plea about non-furnishing of certain documents and at the same time exercised his option for personal hearing, which is referable to Section 75(4) of the Act, 2017. In such a case, of-course we may have interfered but we see no reason to interfere at the behest of petitioner, who did not submit any reply but sought personal hearing. None of decisions annexed with the petition apply to the facts of this case

However, at this stage, Shri Rohit Shukla informed that against the order dated 21.05.2022 passed u/s 74 of the Act, 2017, the appeal could have been filed within a period of 30 days, which was extendable for one month and no more. We find that this petition has been filed only on 21st March, 2023, meaning thereby the period for preferring the appeal had expired much prior to filing of this petition. Therefore, now we understand why the anxiety of the petitioner that this petition should be entertained on alleged grounds of violation of principles of natural justice instead of being relegated to the remedy of appeal. It is nothing but an abuse of process of Court

We, therefore, decline to exercise our extra-ordinary discretionary jurisdiction under Article 226 of the Constitution of India

Writ petition is dismissed


In the result, appeal of the assessee is allowed and ruled in favour of the assessee

Enter your email address:

Subscribe to faceless complainces

Please follow and like us:
Pin Share
Follow by Email