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Orissa High Court
M/S. Bikash Panigrahi vs The Commissioner Commercial Tax on 15 July, 2025
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.12755 of 2025
In the matter of an Application under Articles 226 & 227 of
the Constitution of India, 1950
***
M/s. Bikash Panigrahi
Represented through
Proprietor Bikash Panigrahi
Aged about 42 years
Son of Suresh Panigrahi
At: College Road, Bargarh
P.O./P.S.: Bargarh,
Dist: Bargarh … Petitioner
-VERSUS-
1. The Commissioner Commercial Tax
CT and Goods and Services Tax
At: Banijyakara Bhawan
Cantonment Road, Cuttack, Odisha
2. Additional Commissioner, State Tax
Bargarh Circle, Sambalpur
At/P.O./District: Sambalpur.
3. Deputy Commissioner, State Tax
Bargarh Jurisdiction
At/P.O./Dist: Bargarh. … Opposite Parties
Counsel appeared for the parties:
For the Petitioner : Mr. Abhilash Mishra, Advocate
W.P.(C) No.12755 of 2025 Page 1 of 20
For the Opposite Parties : Mr. Sunil Mishra,
Standing Counsel,
Commercial Taxes and Goods
and Services Tax OrganisationP R E S E N T:
HONOURABLE CHIEF JUSTICE
MR. HARISH TANDON
ANDHONOURABLE JUSTICE
MR. MURAHARI SRI RAMANDate of Hearing : 15.07.2025 :: Date of Judgment : 15.07.2025
J UDGMENT
MURAHARI SRI RAMAN, J.–
Propriety and legality of order dated 7th February,
2022 passed by the Deputy Commissioner of
Commercial Tax and Goods and Services Tax,
Bargarh Circle, Sambalpur, Odisha pertaining to the
financial year, 2018-19 under Section 74 of the
Central Goods and Services Tax Act, 2017 and the
Odisha Goods and Services Tax Act, 2017
(collectively referred to as „GST Act‟), the petitioner
has knocked the doors of this Court by invoking of
provisions of Articles 226 and 227 of the
Constitution of India beseeching to exercise the
extraordinary jurisdiction of this Court with the
following prayer(s):
W.P.(C) No.12755 of 2025 Page 2 of 20
“It is therefore prayed that your Lordship
would graciously be pleased to admit this
petition, issue notice to the Opp.Parties asking
them why the assessment order dated
7.2.2022 and demanding Rs.7.13,705/-
Annexure-2 passed by the Opp.party No. 2
shall not be set aside and if they failed to
explain the same with sufficient reason issue
Rule Nisi and be pleased to set aside the order
dated 7.2.2022 passed by the Opp.Party No.2
vide Annexure-2 illegal, arbitrary the interest of
justice.
And in alternative be pleased to allow the
petitioner to file statutory appeal before the
appellate authority against the impugned order
under Annexure-2 and be pleased to direct the
appellate authority to condone the delay in
preferring appeal and also be pleased to direct
the Appellate authority to disposed of the
appeal in accordance with law within a
stipulated time period;
And pleased to pass any other order(s) as this
Hon’ble Court deem fit and proper.
And, for this act of kindness the petitioner
shall as on duty bound ever pray.”
Facts:
2. The petitioner, proprietorship concern carrying on
its business in the name and style “M/s. Bikash
Panigrahi”, located in the district of Bargarh,
assigned with GSTIN: 21AOQPP6123H1ZX, againstW.P.(C) No.12755 of 2025 Page 3 of 20
which a proceeding under Section 74 of the GST Act
was initiated by issue of show cause notice dated
27th November, 2020 and having failed to file reply
within the period stipulated therein, the assessment
order has been passed whereby a demand in Form
GST DRC-07 was issued. Challenge is laid against
the said order in this writ petition.
Arguments:
3. Mr. Abhilash Mishra, learned Advocate appearing on
behalf of the petitioner submitted that the order of
assessment dated 7th February, 2022 is not only
arbitrary and illegal but also it is not in consonance
with tenet of law, inasmuch as there could not have
been suppression or mis-statement though return
showing „NIL‟ being furnished to the Department.
The notice issued depicting non-filing of return is
misnomer. Had an opportunity been afforded to the
petitioner, the documents/evidence could have been
produced before the Assessing Officer for appraisal.
He would submit that in absence of reply to the
show cause notice, the Assessing Officer jumped to
the conclusion that there was wilful suppression
pertaining to financial year 2018-19. Since there is
no fraud element involved in the transactions that
are subject matter of assessment, the proceeding
W.P.(C) No.12755 of 2025 Page 4 of 20
under Section 74 of the GST Act is illegal, arbitrary
and irrational.
4. In reply to such contention advanced by the counsel
for the petitioner, vehemently opposing the
maintainability of the writ petition assailing the
assessment order instead of availing alternative
remedy provided under the GST Act, Mr. Sunil
Mishra, learned Standing Counsel for Commercial
Tax and Goods and Services Tax Organization urged
that in view of the decision in Godrej Sara Lee Ltd. v.
Excise & Taxation Officer-cum-Assessing Authority,
(2023) 3 SCR 871, the writ petition is not at all
“maintainable”, much less “entertainable”. It is
submitted that had the petitioner availed the
remedy available under the statute, recourse to the
provisions under Section 107 of the GST Act could
have been availed. Under sub-section (4) ibid. the
appellate authority is vested with discretion to
condone the delay in filing the appeal within a
further period of thirty days in the event the appeal
is not filed within a period of three months as
contemplated under sub-section (1) thereof.
Therefore, outer limit for exercise of discretion to
condone the delay being provided for, in view of
Orissa Mineral Development Company Ltd. Vrs.
Commissioner of Sales Tax, Orissa, (1960) 11 STC 12
W.P.(C) No.12755 of 2025 Page 5 of 20
(Ori) = AIR 1960 Ori 79 the writ petition is liable to
be dismissed. He sought to lighlight that it has been
unequivocally laid down in the said judgment as:
“In this application under Article 226 of the
Constitution the validity of the assessment of the
petitioner to sales tax was challenged. On behalf of
the sales tax department, however, Mr. G.K. Misra
raised a preliminary objection on the ground that on
the facts as stated by the applicant himself he had
an alternative remedy by way of a regular appeal
before the Sales Tax Tribunal and that consequently
this Court should not exercise its extraordinary
jurisdiction under Article 226.
***
The law of limitation for filing revision petition before
the Collector and the Revenue Commissioner was
laid down in Rules 52 and 53 of the Orissa Sales Tax
Rules, and a period of thirty days from the date of
receipt by the assessee of the order of the appellate
authority was fixed for filing revision petitions before
the Collector and a period of sixty days from the date
of receipt of the order of the Collector was fixed for
filing revision petitions before the Revenue
Commissioner.
***
I am inclined to agree with Mr. Misra. It is true that
the existence of an alternative remedy may not
always be a sufficient ground for this Court to refuse
to exercise its jurisdiction under Article 226 and
cases may arise where the unconstitutionality or the
illegality of the order under challenge is so apparent
W.P.(C) No.12755 of 2025 Page 6 of 20
that notwithstanding the existence of the alternative
remedy this Court may interfere under that Article.
This principle has been emphasised in a recent
decision of the Supreme Court reported in U.P. State
Vrs. Mohd. Noor, AIR 1958 SC 86. But at the same
time a party should not be permitted to escape the
rigorous effects of the law of limitation by applying to
this Court under Article 226, after the expiry of the
period prescribed by law to get relief from the
appropriate revisional or appellate authorities. If, as
a fact, the petitioner received the copy of the
Collector‟s order prior to the 1st October, 1957, as
alleged by the sales tax department, he should have
filed a revision petition before the Board of Revenue
within sixty days from that date and thus kept the
revision petition alive so as to make it pending on the
date of coming into force of Sections 9, 10 and 11 of
Orissa Act XX of 1957. Such a revision would then
have been disposed of by the Board of Revenue and
the petitioner would undoubtedly have had a right to
ask for a statement of case to this Court, as provided
in section 24 of the Act. If, on the other hand, the
petitioner’s statement to the effect that he received a
copy of the Collector’s order only on the 4th October,
1957, be taken as correct, then as soon as the Orissa
Legislature passed Act XXVI of 1958 and conferred
on him the right to appeal to the Sales Tax Tribunal
against the order of the Collector, he should have
filed a regular appeal to the Tribunal. When the
Legislature stepped in, at a time when this
application was pending in this Court and conferred
on the aggrieved party a regular right of appeal
before an independent judicial Tribunal, the party
should be directed to seek his redress before that
Tribunal and should not be permitted to invoke the
W.P.(C) No.12755 of 2025 Page 7 of 20
extraordinary jurisdiction of this Court under Article
226. The powers of this Court under that Article are
limited whereas the powers of the Tribunal as an
appellate authority are co-extensive with those of the
lower authorities. It can investigate facts and come to
its own independent findings.
The questions involved in this petition are mixed
questions of law and fact. The petitioner has been
contending that the sales in question were inter-State
sales and also that they were sales in the course of
export and as such outside the purview of the Orissa
Sales Tax Act. On the other hand, the department
has been contending that the sales were completed in
Orissa and were consequently purely internal sales.
This disputed question can be finally disposed of
only by a court of appeal. ***”
4.1. Drawing similitude Sri Sunil Mishra, learned
Standing Counsel submitted that the petitioner
herein seeks to set up adjudication of factual
dispute whether there is suppression of
transactions or fraud element involved in such
transactions. This apart, the petitioner attempted to
circumvent the process of alternative remedy only to
by-pass the rigours of conditions hedged for filing
appeal and absence of sufficient reason
demonstrating delay in approaching this Court.
Thus, in sum and substance the learned Standing
Counsel impressed upon to say that the statutory
prescription with respect to timeline to approach the
appellate authority provided under Section 107 of
W.P.(C) No.12755 of 2025 Page 8 of 20
the GST Act could not save limitation to run from
the date of assessment order.
4.2. Mr. Sunil Mishra, learned Standing Counsel
expanded his argument by advancing argument that
since no reason has been cited by the petitioner,
which prevented him from approaching the forum
available under the statute, this writ petition does
not deserve to be entertained after more than three
years from the date of passing of an order of
assessment, particularly when at paragraph-4 of the
writ petition, it is admitted that show cause notice
dated 27th November, 2020 was served on the
petitioner to which he did not choose to file any
reply or explanation. Therefore, he submitted that
the present writ petition is not maintainable and/or
entertainable at this distance of time, as the
petitioner remained indolent in challenging the
assessment order for such a long period.
Hearing:
5. As short point is involved whether the writ petition
is maintainable for there occurred inexplainable
delay of more than three years from the date of
passing the assessment order, this writ petition is
taken up for final hearing at the stage of admission.
W.P.(C) No.12755 of 2025 Page 9 of 20
5.1. Accordingly, heard Mr. Abhilash Mishra, learned
counsel for the petitioner and Mr. Sunil Mishra,
learned Standing Counsel for Commercial Tax and
Goods and Services Tax Organization.
Analysis and discussions:
6. Upon scrutiny of material available on record, it is
ex facie manifest that the petitioner has admitted to
have been served with show cause notice issued on
27th November, 2020 via common portal. There is,
therefore, no question of any doubt that the
petitioner had the knowledge about initiation of
proceedings being initiated under Section 74 of the
GST Act.
6.1. As it appears from the document enclosed to the
writ petition as Annexure-2, the Assessing Officer
has passed the assessment order on 7th February,
2022 in connection with said show cause notice
dated 27th November, 2020 with respect to
transactions pertaining to financial year 2018-19.
6.2. A bare reading of provisions under Section 107 of
the GST Act makes it abundantly clear that the
appellate authority is empowered to exercise his
discretion to condone the delay beyond the period
specified under sub-section (1) for filing appeal for
further period of thirty days in terms of sub-section
W.P.(C) No.12755 of 2025 Page 10 of 20
(4). Since this writ petition is filed even much after
the condonable period envisaged under the said
provision, the writ petition is not maintainable.
6.3. This Court is taken to take note of Tata Steel Ltd.
Vrs. Raj Kumar Banerjee, 2025 INSC 639. After
review of a pertinent decisions, the Hon‟ble Supreme
Court of India having regard to period of limitation
stipulated in Section 61 of the Insolvency and
Bankruptcy Code, 2016, observed as follows:
“10.4.In the present case, Respondent No.1 was
neither a party to the proceedings before the
NCLT nor privy to the CoC deliberations, and
became aware of the order only upon its
subsequent disclosure. However, it is evident
that the Company Secretary of the Corporate
Debtor duly informed the listing departments of
both NSE and BSE about the NCLT order dated
07.04.2022 within 30 minutes of its
pronouncement. Hence, the limitation period for
filing the appeal commenced on 07.04.2022 and
expired on 07.05.2022. Notably, 07.05.2022 fell
on the first Saturday of the month, which is a
working day for the Registry of the NCLAT.
Even otherwise, the benefit of Section 4 of the
Limitation Act, 1963 cannot be granted, as
Respondent No.1 filed the appeal beyond not
only the prescribed period of 30 days but also
the condonable period of 15 days, i.e., on
24.05.2022. In view of the same reason, Rule 3
of the NCLAT Rules, 2016 has also no
application to the facts of the present case.
W.P.(C) No.12755 of 2025 Page 11 of 20
Thus, applying the principles laid down in the
decisions referred to above, we arrive at the
irresistible conclusion that Respondent No.1
filed the appeal beyond the statutory maximum
period of 45 days prescribed under section
61(2) IBC. Accordingly, the first issue is
answered by us.
11. As indicated above, the IBC prescribes strict
timelines for filing appeals and taking legal
action so as to ensure that insolvency
proceedings are not misused to recover time-
barred debts. The proviso to Section 61(2)
clearly limits the NCLAT‟s jurisdiction to
condone delay only up to 15 days beyond the
initial 30-day period. Where a statute expressly
limits the period within which delay may be
condoned, an Appellate Tribunal cannot exceed
that limit. In other words, the NCLAT being a
creature of statute, operates strictly within the
powers conferred upon it. Unlike a civil suit, it
lacks inherent jurisdiction to extend time on
equitable grounds.
11.1. Once the prescribed and condonable periods
(i.e., 30 + 15 days) expire, the NCLAT has no
jurisdiction to entertain appeals, regardless of
the reason for the delay. In Mobilox Innovations
Private Limited Vrs. Kirusa Software Private
Limited, (2018) 1 SCC 353 while interpreting
Section 9 IBC, this Court underscores the IBC‟s
strict procedural discipline i.e., only applications
strictly conforming to statutory requirements
can be entertained. This principle is also
applicable to limitation issues under section
W.P.(C) No.12755 of 2025 Page 12 of 20
61(2), as it supports the idea that tribunals
must operate within the bounds of the Code,
without adding equitable or discretionary
powers not conferred by statute. This Court in
Kalpraj Dharamshi Vrs. Kotak Investment
Advisors Limited, (2021) 10 SCC 401 has
categorically held that the NCLAT cannot
condone any delay beyond 15 days even on
equitable grounds; and that the appellate
mechanism under IBC is strictly time-bound by
design to preserve the speed and certainty of
the insolvency resolution process.
11.2. Thus, the NCLAT has no power to condone
delay beyond the period stipulated under the
statute. Accordingly, the second issue is
answered by us.
12. In view of the foregoing, the order passed by the
NCLAT condoning the delay in filing the appeal,
is ultra vires and liable to be set aside.
13. Before parting, we may observe that time is of
the essence in statutory appeals, and the
prescribed limitation period must be strictly
adhered to. Even a delay of a single day is fatal
if the statute does not provide for its
condonation. As held by us, the NCLAT has no
power to condone delay beyond the period
stipulated under the statute. Allowing
condonation in such cases would defeat the
legislative intent and open the floodgates to
belated and potentially frivolous petitions,
thereby undermining the efficacy and finality of
the appellate mechanism.”
W.P.(C) No.12755 of 2025 Page 13 of 20
6.4. It is brought to the notice that Division Bench
taking cognizance of the provisions under Section
169 of the GST Act with respect to service of notice
via Common Goods and Services Tax Electronic
Portal in the case of M/s. Rahul Spares Pvt. Ltd. Vrs.
Chief Commissioner of C.T. & GST and others in
W.P.(C) No.9373 of 2025, disposed of vide Order
dated 08.04.2025 held as follows:
“5. It leads to another point pertaining to delay and
latches attributable to the conduct of the
Petitioner in approaching this Court. We are not
unmindful of the proposition that there is no
period of limitation provided under the
Limitation Act in relation to an application under
Article 226 and 227 of the Constitution of India.
The Apex Court as well as several High Courts
have imposed self-restraint upon themselves in
exercising the discretion under Article 226 of the
Constitution, if the approach is made belatedly
and bereft of any reasonable explanation. The
delay and laches attributable to the conduct of
the litigant may disentitle him to get the relief
and the Court may at times refuse to exercise
such discretion vested upon them.
6. The moment the order is uploaded in the
common portal and the returns are statutorily
required to be uploaded on such portal on
periodical intervals, it is inconceivable that there
was lack of knowledge of said order to the
Petitioner. The order was passed as far back as
in the year 2023 and the challenges made toW.P.(C) No.12755 of 2025 Page 14 of 20
the same in the instant writ petition, filed in the
year 2025, is without any explanation except
that said order was not within the knowledge of
the Petitioner.
7. In view of the discussions made hereinabove,
we are unable to accept the contention of the
petitioner that the order was not communicated
to him. There is apparent delay in approaching
this Court and, therefore, we refuse to exercise
the discretion vested upon us under Article 226
of the Constitution. Accordingly, the writ
application is rejected. No order as to costs.”
6.5. Heavy reliance is placed by Mr. Sunil Mishra,
learned Standing Counsel in the case of M/s. Laxmi
Construction Vrs. State Tax Officer, CT & GST Circle,
Barbil, W.P. (C) No.9545 of 2024 vide Judgment
dated 09th May, 2024, wherein this Court has
referred to the case of Assistant Commissioner (CT)
LTU, Kakinada Vrs. Glaxo Smith Kline Consumer
Health Care Ltd., (2020) 4 SCR 602 and the decision
of Rajasthan High Court in Malik Khan Vrs. Chief
Commissioner, GST and Central Excise, (2023) 120
GSTR 66 (Raj) held as follows:
“7. In Assistant Commissioner (CT) LTU, Kakinada
Vrs. Glaxo Smith Kline Consumer Health Care
Ltd., (2020) 4 SCR 602, the apex Court at
paragraphs 14 and 15 held as follows:-
„14. A priori, we have no hesitation in taking
the view that what this Court cannot do in
W.P.(C) No.12755 of 2025 Page 15 of 20
exercise of its plenary powers under
Article 142 of the Constitution, it is
unfathomable as to how the High Court
can take a different approach in the matter
in reference to Article 226 of the
Constitution. The principle underlying the
rejection of such argument by this Court
would apply on all fours to the exercise of
power by the High Court under Article 226
of the Constitution.
15. We may now revert to the Full Bench
decision of the Andhra Pradesh High Court in
Electronics Corporation of India Ltd. Vrs.
Union of India, 2018 (361) ELT 22(AP)
which had adopted the view taken by the
Full Bench of the Gujarat High Court in
Panoli Intermediate (India) Pvt. Ltd. Vrs.
Union of India and Ors., AIR 2015 Guj 97
and also of the Karnataka High Court in
Phoenix Plasts Co. Vrs. Commissioner of
Central Excise (Appeal-I), Bangalore, 2013
(298) ELT 481 (Kar). The logic applied in
these decisions proceeds on fallacious
premise. For, these decisions are premised
on the logic that provision such as Section
31 of the 1995 Act, cannot curtail the
jurisdiction of the High Court under
Articles 226 and 227 of the Constitution.
This approach is faulty. It is not a matter
of taking away the jurisdiction of the High
Court. In a given case, the Assessee may
approach the High Court before the
statutory period of appeal expires to
challenge the assessment order by way of
W.P.(C) No.12755 of 2025 Page 16 of 20
writ petition on the ground that the same
is without jurisdiction or passed in excess
of jurisdiction-by overstepping or crossing
the limits of jurisdiction including in
flagrant disregard of law and Rules of
procedure or in violation of principles of
natural justice, where no procedure is
specified. The High Court may accede to
such a challenge and can also non-suit the
petitioner on the ground that alternative
efficacious remedy is available and that be
invoked by the writ petitioner. However, if
the writ petitioner chooses to approach the
High Court after expiry of the maximum
limitation period of 60 days prescribed
under Section 31 of the 2005 Act, the High
Court cannot disregard the statutory
period for redressal of the grievance and
entertain the writ petition of such a party
as a matter of course. Doing so would be
in the teeth of the principle underlying the
dictum of a three-Judge Bench of this
Court in Oil and Natural Gas Corporation
Limited Vrs. Gujarat Energy Transmission
Corporation Limited & Ors. (2017) 5 SCC
42. In other words, the fact that the High
Court has wide powers, does not mean
that it would issue a writ which may be
inconsistent with the legislative intent
regarding the dispensation explicitly
prescribed under Section 31 of the 2005
Act. That would render the legislative
scheme and intention behind the stated
provision otiose.‟
W.P.(C) No.12755 of 2025 Page 17 of 20
8. Relying on the aforesaid decision of the apex
Court, the High Court of Judicature for
Rajasthan in Malik Khan (supra) dismissed the
writ petition which was filed after eight months of
expiry of limitation.
9. So far as communication of the order is
concerned, Section 169(1)(d) provides as
follows:
„169.Service of notice in certain
circumstances.--
(1) Any decision, order, summons, notice or
other communication under this Act or the
rules made there under shall be served by
any one of the following methods, namely:-
***
(d) by making it available on the
common portal; or‟In view of the aforesaid provision, it is made
clear that even though the petitioner has not
been communicated with the order physically,
but since the same was made available on the
common portal, it is deemed to have been
served on him. Therefore, such plea is of no use
for the petitioner.
10. In view of the foregoing discussions and by
applying the aforesaid principles to the present
case, this Court is of the considered view that
since the petitioner has not filed any statutory
appeal before the appellate authority within the
limitation period and has directly filed this writ
W.P.(C) No.12755 of 2025 Page 18 of 20
petition before this Court after two years and
five months of passing of the impugned order,
the writ petition filed by the petitioner cannot be
entertained as being not maintainable.”
6.6. Such being perception, which assists this Court to
arrive at a conclusion that if notice/order is
uploaded on common GST portal, the same shall be
considered as service on the assessee (petitioner) in
view of unambiguous provisions contained in
Section 169 of the GST Act and the writ petition is
not maintainable being filed beyond the condonable
period provided under Section 107 of the GST Act.
Conclusion:
7. Under the aforesaid premises, the assessment order
dated 07.02.2022 passed under Section 74 of the
GST Act by the Deputy Commissioner of
Commercial Tax and Goods and Service Tax,
Bargarh Circle, Sambalpur being challenged by way
of filing the writ petition on 08.04.2025 is
exceptionable as the petitioner has not ascribed
reason for the unusual delay in approaching this
Court.
8. For the reasons assigned in the foregoing
paragraphs and discussions made supra, the writ
petition, sans merit, stands dismissed; and pending
W.P.(C) No.12755 of 2025 Page 19 of 20
Interlocutory Applications, if any, are also dismissed
accordingly.
I agree.
(HARISH TANDON) (MURAHARI SRI RAMAN)
CHIEF JUSTICE JUDGE
Signature Not Verified
Digitally Signed
Signed by: BICHITRANANDA SAHOO
Designation: Secretary
Reason: Authentication
High
Location: Orissa High CourtCourt of Orissa, Cuttack
Date: 17-Jul-2025 19:42:27 th
The 15 July, 2025/Bichi
W.P.(C) No.12755 of 2025 Page 20 of 20
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