Farhat Construction V. State of Chhattisgarh

1. Petitioner has filed this petition seeking following relief (s) :-
“10.1 It is prayed that this Hon’ble Court may kindly be pleased to call for the entire records concerning the case of the petitioner firm from the possession of respondents for its kind perusal. 10.2 This Hon’ble Court may kindly be pleased to issue an appropriate writ, staying the effect, operation and execution of the impugned order dated 10.11.2022 issued by the respondent No.3, Joint Commissioner (Appellate), passed in Appeal Case No.265/2022/GST/Appeal, for the Assessment period April, 2020 to July 2020, by declaring the same to be illegal and inoperative in law. 10.3 That this Hon’ble Court may kindly be pleased to issue an appropriate writ commanding the official Respondents not to take any coercive action against the petitioner firm, during pendency of the instant writ petition, in the interest of justice. 10.4 Any other reliefs which this Hon’ble Court may think fit and proper in the facts and circumstances of the case, with cost of the petition may also please be granted to the petitioner.”

2. Petitioner firm is a proprietorship firm and registered under the Goods and Service Tax w.e.f from 01.07.2017. Respondents departments have assessed the short payment of GST by petitioner amounting to Rs.16,04,845/- (CGST Rs.8,02,423/- and SGST Rs.8,02,423/-). On 28-29.01.2021 the Adjudicating Authority passed an order with regard to difference of tax to the tune of Rs.33,66,672 and demand was issued under DRC-07. This order dated 28-29.01.2021 was put to challenge in an appeal as provided under Section 107 (1) of Goods and Services Tax Acts, 2017 (In short ‘the Act of 2017’), which came to be dismissed vide order dated 10.11.2022 (Annexure P-1) which made the petitioner to file this writ petition.

3. Learned counsel for petitioner submits that Appellate Authority dismissed the appeal only on the ground of limitation. The Appellate Authority has not admitted the appeal observing that it was barred by limitation. He also pointed out that the learned Appellate Authority while dismissing the appeal as barred by limitation has observed that the appeal is barred by 536 days, which is per-se wrong in view of the decision of Hon’ble Supreme Court dated 10.01.2022 in Re:Cognizance for Extension of Limitation in Miscellaneous Application No. 21 of 2022 in M.A. No. 665 of 2021 in SMW (C) No. 3/2020. It is contended that in the order dated 10th of January, 2022 Hon’ble Supreme Court has ordered that period from 15.03.2020 till 28.02.2022 shall be excluded for the purpose of limitation and therefore, the limitation is to be counted from 1st of March 2022 as directed by Hon’ble Supreme Court, therefore, the observations made by First Appellate Authority that appeal is barre by 536 days is absolutely wrong. The Appellate Authority has not taken note of the order passed by the Hon’ble Supreme Court and therefore, the matter be remitted back to the First Appellate Authority for reconsidering the appeal.

4. It is further submitted that the period when petitioner is required to file appeal is of Covid-19 pandemic period and at that time entire country was suffering. Petitioner also got affected with
Covid-19 infection and therefore, the Fist Appellate Authority considering the entire facts ought to have taken pragmatic view and condoned the delay which is only about 5 months. In support of his contention he placed reliance upon the decision of High Court of Orissa at Cuttack in M/s. Shree Udyog Vs. Commissioner of State Tax Odisha, Cuttack and Others, W.P.(C) No. 14887 of 2021, decided on 10.06.2021 and the decision of High Court of Calcutta in case of Kajal Dutta Vs. Assistant Commissioner of State Tax, Suri Charge & Ors. M.A.T. No. 1924 of 2022, decided on 20.01.2023.

5. Learned counsel for respondent/state opposes the submission of learned counsel for petitioner and would submit that the Adjudicating Authority by applying the best judgment assessment passed the ex-parte adjudication order on 29.01.2021 and affirmed the demand of tax interest and penalty upon petitioner. The order dated 29.01.2021 was challenged in an appeal, which was dismissed by Appellate Authority vide order dated 10.11.2022. She contended that according to the decision of Hon’ble Supreme Court the period between 15.03.2020 till 28.02.2022 was excluded and fresh limitation period was starting from 1st of March, 2022. The appeal is filed after 10 months from the date of starting of limitation. According to provisions under Section 107 of the Act of 2017, the limitation for filing an appeal is only three months and further it can be extended for one month and thereafter, the Appellate Authority was not having any jurisdiction to condone the delay. The Act of 2017 is a special law, it is a entire Code in itself and the provisions of Limitation Act is not applicable. It is contended that the Division Bench of this Court in case of Nandan Steels And Power Limited Vs. State of Chhattisgarh & Ors. in W.A. No. 104 of 2021, decided on 10.08.2022 have considered the issue of application of Limitation Act and upheld the order passed by Single Bench dismissing the appeal observing that there is no power to entertain the application for condonation of delay beyond permissible period provided under the Act of 2017. 

Download Pdf:
Farhat Construction

For Reference Visit:
Chhatishgarh High Court

Read Another Case Law:
GST Case Law