High Courts cannot bypass limitation prescribed under the GST
law for filing appeals
Introduction
In a significant ruling,
the Rajasthan High Court (Jodhpur Bench) in D.B. Civil Writ Petition No.
2785/2023, decided on 03 May 2023, dismissed a writ petition filed
by Malik Khan, proprietor of Desert Gateway Resorts, Jaisalmer, against
a GST demand order issued under Section 73 of the CGST Act, 2017. The Court
held that once the statutory appeal period has expired, a writ petition under
Article 226 of the Constitution cannot be entertained, unless the
assessment order suffers from a jurisdictional error or glaring illegality.
The ruling reinforces the
principle that High Courts cannot bypass limitation prescribed under the GST
law for filing appeals, especially after the outer limit (including extension)
has expired.
Parties
- Petitioner:
Malik Khan, Proprietor, Desert Gateway Resorts, Jaisalmer
- Respondents:
1. Chief
Commissioner, GST & Central Excise, Jaipur Zone
2. Assistant
Commissioner, Circle Jaisalmer
Case Number & Court
- Case No.:
D.B. Civil Writ Petition No. 2785/2023
- Court:
High Court of Judicature for Rajasthan, Jodhpur
- Bench:
Hon’ble Justice Vijay Bishnoi and Hon’ble Justice Praveer Bhatnagar
- Date of Order:
03/05/2023
Background
and Facts
The petitioner runs a
hospitality business under the name Desert Gateway Resorts and is
registered under the GST Act. The department found discrepancies in his returns
for FY 2017–18.
Key events as per the
record:
1. 29.12.2021:
Department issued an intimation under Section 73(5), indicating tax
liability for July 2017–March 2018.
→ Petitioner did not respond.
2. 24.01.2022:
A Show Cause Notice (SCN) under Section 73 was issued, seeking reply by
10.02.2022.
→ Again, no response.
3. 16.02.2022:
The Assistant Commissioner passed an ex parte assessment order raising a
demand of Rs 15,10,570, directing payment by 17.05.2022, warning of
recovery.
4. The
petitioner did not file an appeal under Section 107, which provides 30
days + 30 days (condonable) for filing appeal.
5. 14.02.2023:
After almost eight months from the expiry of the appeal period, he approached
the High Court directly with a writ petition.
Petitioner’s
Arguments
The petitioner contended:
- The order dated 16.02.2022 was non-speaking,
lacked reasons, and violated principles of natural justice.
- Although the order states that
reasons are in an annexure, no annexure was supplied.
- Since the order is illegal and passed
without proper reasoning, the writ is maintainable despite the absence of
appeal.
- Limitation for appeal under Section
107 has expired, leaving no other remedy.
- Reliance placed on:
- Assistant Commissioner (CT) LTU,
Kakinada vs. GSK Consumer Healthcare
- Madras High Court’s decision dated
16.11.2022 in W.P No. 28415/2022
Respondents’
Arguments
The GST department
argued:
- The writ petition is not
maintainable because the petitioner had a statutory remedy of appeal
under Section 107.
- The petitioner had concealed crucial
facts:
- For FY 2017–18, bank credit was Rs
60,35,268, but turnover declared in return was only Rs 3,60,400
→ indicating concealment of Rs 56,74,868.
- Summon under Section 70 was duly
served, but the petitioner did not respond.
- Demand of Rs 15,10,571 (tax +
interest + penalty) was correctly created.
- Strong reliance on Supreme Court
rulings:
- Commercial Steel Limited
- Greatship (India) Ltd.
Issues
Before the Court
1. Whether
the writ petition is maintainable when the statutory appeal under Section 107
was not filed within limitation?
2. Can
the High Court entertain a writ petition after the appeal period, including the
extended period, has fully expired?
Court’s
Findings
1. Appeal was not filed
within limitation
The Court noted:
- The impugned order was passed on 16.02.2022.
- Appeal had to be filed within 30
days + 30 days (condonable).
- The petitioner filed writ on 14.02.2023,
i.e., eight months after the expiry of limitation.
Thus, the statutory
remedy was not availed and had become time-barred.
2. Writ not maintainable
after expiry of appeal limitation
Relying heavily on the
Supreme Court decision in Assistant Commissioner (CT) LTU, Kakinada (GSK
case), the High Court held:
- High Courts cannot entertain writ
petitions filed after the statutory limitation for appeal expires.
- Doing so would defeat the legislative
intent behind the limitation provisions.
- Even High Court’s powers under
Article 226 cannot be invoked to bypass a clear statutory scheme.
The relevant Supreme
Court passage was reproduced, emphasizing:
“What this Court cannot
do in Article 142, the High Court cannot do in Article 226… If the petitioner
approaches after expiry of maximum limitation, the High Court cannot disregard
the statutory period.”
3. No exceptional
circumstances shown
The petitioner did not
show:
- Jurisdictional error
- Fraud
- Violation so severe that it rendered
the order null
Therefore, the writ court
should not intervene.
Judgment
The High Court held:
- The writ petition is not
maintainable.
- Once the limitation for filing appeal
under Section 107 has expired, the petitioner cannot bypass the statutory
remedy by approaching the High Court under Article 226.
- Hence, the writ petition was dismissed.
Conclusion: This
judgment reinforces a consistent trend in GST litigation: Courts will not
entertain writ petitions where taxpayers sleep over their appeal rights.
The ruling aligns with the Supreme Court’s strict view that High Courts cannot
extend or bypass statutory limitation periods.
Disclaimer: All the Information is based on the notification, circular advisory and order issued by the Govt. authority and judgement delivered by the court or the authority information is strictly for educational purposes and on the basis of our best understanding of laws & not binding on anyone.
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