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Patna High Court – Orders
M/S Agarwal Tube Company vs The Union Of India Through The Finance … on 21 April, 2025
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.14239 of 2024
======================================================
M/S Agarwal Tube Company a Proprietorship concern having GSTIN-
10ACFPG3609L1ZZ and its Principal Place of business is at 3rd Floor, 320,
Ashiana Tower, Exhibition Road, Near HDFC Bank, Gandhi Maidan
Chauraha, Patna- 800001, through its proprietor Sri Surendra Kumar Goyal,
Gender Male, aged about 60 years, Son of Late Om Prakash Goyal, Resident
of Flat No. 411, Kailash Apartment, Near Rajeshwar Hospital, Kankarbagh
Main Road, P.S. Patrakar Nagar, P.O. Lohiya Nagar, Patna- 800020
... ... Petitioner/s
Versus
1. The Union of India through the Finance Secretary, Department of Revenue,
Govt. of India, New Delhi.
2. The Government of India, Ministry of Finance (Department of Revenue),
through the Director, CBIC, New Delhi.
3. The State of Bihar through The Principal Secretary, State Tax, Bihar, Patna
having its office at Kar Bhawan, Patna.
4. The Principal Secretary Cum Commissioner, Department of State Taxes,
Government of Bihar, Patna.
5. Joint Commissioner of State Tax, Patna North Circle, Patna East, Bihar,
Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Bijay Kumar Gupta, Adv.
For the Respondent/s : Dr. Krishna Nandan Singh, Sr. Adv. (ASG)
Mr. Anshuman Singh. Sr. SC, CGST
Mr. Shivaditya Dhari Singh, Adv.
For the State : Mr, Vikash Kumar, SC-11
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE S. B. PD. SINGH
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
9 21-04-2025
In the instant petition, petitioner has prayed for the
following reliefs:
” i) The demand order vide Process No-
Nil dated 30.11.2023 (as contained as
Annexxure-P-2) and Summary of demand
Patna High Court CWJC No.14239 of 2024(9) dt.21-04-2025
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order vide Reference No.
ZD101123029705Y, dated 30.11.2023 (as
contained in Annexure-P-2A) in form of
DRC-07 passed by the Respondent No.-5
demanding tax, interest and penalty
amounting to Rs. 9,76,879.00 under the
IGST, Rs. 5,52,642.)) under CGST and
5,52,642.00 BGST Act total amounting to
Rs. 20,82,163.00.00 for the period JULY
2017 to March-2018 in Form GST DRC-07
be quashed as the Demand Order is time
barred in view of the provision of Section
73(9) & (10) BGST/CGST Act, 2017.
ii) For issuing a writ of certiorari
or any other appropriate writ quashing/
setting aside the Notification No. 9/2023 CT
dated 31.03.2023 extending the time limit
specified under Section 73(10) of the
CGST/BGST Act, 2017 by virtue of the
powers under Section 168A of the Act which
is unjustified as extension has to be for
special circumstances mentioned in the
section itself. Having once extended the
period by virtue of notification No. 13/2022
CT dated 05.07.2022, no subsequent
extension could be made by Respondent No-
1 and 2 as there were no force majeure
condition in Mar-2023.”
iii) For issuing a writ of certiorari
or any other appropriate writ
Patna High Court CWJC No.14239 of 2024(9) dt.21-04-2025
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quashing/setting aside show cause notices
dated 25.09.2023/29.09.2023 and order dated
30.11.2023 passed by the Respondent No.- 5
as the show cause notice and order are
voilative of Article 14 of the Constitution of
India as the Respondent No. 1 & 2 while
issuing notification extending time line for
passing orders for imposing tax, interest and
penalty and no extension was made for
availing input tax credit u/s 16(4) for the
period 2017-2018 despite the country was in
the grip of Covid-19 and this action is
violative of Article 14 of the Constitution of
India as beneficial provisions for the
registered persons were not extended
simultaneously for granting any relief(s) to
which the petitioner is otherwise entitled to.
iv). For issuing a writ of certiorari
or any other appropriate writ quashing/
setting aside the notification No.9/2023 CT
dated 31.03.2023 extending the time limit
specified under Section 73 (10) of the CGST
Act, 2017 by virtue of the powers under
section 168A of the Act is unjustified as
extension has to be for special circumstances
mentioned in the section itself. Having once
extended the period by virtue of notification
No.13/2022 CT dated 05.07.2022 there could
be no subsequent extension as there is no
such circumstances of force majeure in the
Patna High Court CWJC No.14239 of 2024(9) dt.21-04-2025
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month of Mar-2023.
v) For issuing a writ of certiorari
or any other appropriate writ quashing/
setting aside the show cause notice (P-1 & P-
1A) and Demand order (P-2 & P-2A) which
were issued without issuance of pre-show
cause notice in the Form of DRC-01A U/s
73(3) of BGST/CGST Act 2017 which
render the entire proceedings of Respondent
No- 5 violative of principles of natural
justice and liable to be set aside.
vi) For that the show cause notice
dated 25.9.2023 and summary of show cause
notice in the form DRC-01 vide Reference
No ZD1009230359966 dated 29-09-2023
and the final order dated 30.11.2023 vide
Reference No- NIL and summary of the
order in the Form DRC-07 passed by the
Respondent No.-5 on dated 30/11/2023 vide
Reference No-ZD101123029705Y and only
uploading these on the Common Portal
would not amount to Service of Notice and
Order as per the requirement of Section 169
of BGST/CGST Act.
vii) for granting any other relief (s)
to which the petitioner is otherwise found
entitled to in accordance with law.”
2. The petitioner has statutory remedy of appeal
before the Appellant Authority and he has not exhausted such
Patna High Court CWJC No.14239 of 2024(9) dt.21-04-2025
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remedy on the score that there is a violation of statutory
provision like for the assessment year 2017-2018, deadline for
assessment is 31.12.2021 and further principle of natural justice
has been violated insofar as non-compliance to sub-section (8)
of Section 73 of C.G.S.T. Act, 2017 (for short Act, 2017).
3. The learned counsel for the petitioner submitted
that assessment year for the 2017-18, deadline would be on or
before 31.12.2021 whereas, the notice has been issued under
Section 73 on 25.09.2023. Further notice under Section 73(i),
Act, 2017 read with Rule 142 (i) on 29.09.2023. Thereafter,
proceeded to issue order of demand on 30.11.2023. Hence, there
is a violation of Sub-section (8) of Section 73 or Act, 2017
insofar as issuing notice to notice dated 29.09.2023. The date
on which the petitioner was asked to submit his reply on
5.10.2023 and his appearance on 5.10.2023. On this score, the
writ petition is to be allowed.
4. Per contra, learned counsel for the respondent
resisted the aforementioned contentions and submitted that for
the year 2017-18 assessment deadline has been extended till
31.12.2023 in terms of the notification dated 21.03.2023.
Notification 31.03.2023 (Annexure-P/5) and it was subject
matter of litigation before this Court, in which it has been
Patna High Court CWJC No.14239 of 2024(9) dt.21-04-2025
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upheld in the case of M/S Barhonia Engicon Private Limited
vs The State Of Bihar and Ors. and connected matters. The
petitioner has been provided sufficient opportunity on
29.09.2023. Thereafter, reminder was also issued on 04.11.2023.
The petitioner has not availed such remedy. Therefore, the
petitioner cannot contend that there is a violation of Section
73(8) or Act, 2017.
5. Learned counsel for the Union of India submitted
that insofar as deadline for the assessment year 2017-18 it is not
31.12.2021 and it is extended up to 31.12.2023 in terms of
circular dated 31.03.2023 (Annexure P/5). Therefore, the
petitioner has not made out a case whereas he has remedy
before the Appellate Authority.
6. Heard learned counsels for the respective parties.
Undisputed facts are that assessment for the year 2017-18 has
been undertaken by the State – respondents while issuing notice
under Section 73 or Act, 2017 on 25.09.2023 followed by
notice dated 29.09.2023 under Section 73(1) or Act, 2017 read
with rule 142(1). Thereafter, proceeded to issue demand on
30.11.2023.
7. Core issue involved in the present lis is whether is
there any limitation? State – respondents have violated
Patna High Court CWJC No.14239 of 2024(9) dt.21-04-2025
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limitation insofar as assessment for the year 2017-18 or not?
No doubt, initially deadline was on or before 31.12.2021 and the
same has been extended by virtue of circular dated 31.03.2023
(Annexure P/5). Therefore, the State – respondents have right to
initiate proceedings for the assessment of the year 2017-18 till
31.12.2023. In this regard, we have to take note of that the
notice under Section 73 or Act, 2017 has been issued on
25.09.2023. Therefore, it is within the time limit.
8. While issuing notice under Section 73(i) or Act,
2017 read with rule 142(i) whether State – respondents have
given thirty days time to answer or not. In this regard, it is
evident from notice dated 29.09.2023, date for submission of
reply has been given 05.10.2023 and so also for hearing on
05.10.2023. Thirty days lapses on 28.10.2023. Therefore,
issuance of notice dated 29.09.2023 is not in accordance with
sub-section 8 of Section 73 of Act, 2017. On this score, the
petitioner has made out a case . Accordingly, the impugned
actions dated 30.11.2023 are set aside. Matter is remanded to the
concerned authority to issue a corrigendum to 29.09.2023 notice
insofar as extending time limit for submission of reply and also
date of hearing strictly in accordance with sub-section 8 of
Section 73 or Act, 2017. The above exercise shall be
Patna High Court CWJC No.14239 of 2024(9) dt.21-04-2025
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completed within a period of three months from the date of
receipt of this order. Remaining contentions or reliefs sought by
the petitioner are left open to be urged before the authorities or
before this Court in future.
9. With the above observation, the present Writ
Petition No. 14239 of 2024 stands allowed in part.
(P. B. Bajanthri, J)
( S. B. Pd. Singh, J)
sushma/Ankit/-
U
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