2025(04)LCX0046

Simla Gomti Pan Products Private Limited

Versus

Commissioner Of State Tax U.P.

WRIT TAX No. - 330 of 2024 decided on 10-04-2025

Neutral Citation No. - 2025:AHC-LKO:20379

Court No. - 6

Case :- WRIT TAX No. - 330 of 2024

Petitioner :- M/S Simla Gomti Pan Products Pvt. Ltd. Thru. Director
Megh Raj Singh
Respondent :- Commissioner Of State Tax U.P. Lko. And 2 Others
Counsel for Petitioner :- Pradeep Agrawal,Alok Kumar Gupta
Counsel for Respondent :- C.S.C.

Hon'ble Pankaj Bhatia,J.

1. Heard learned counsel for the petitioner and learned Standing Counsel for the State.

2. Present petition has been filed by the petitioner challenging the orders dated 11.11.2024 & 23.11.2024 whereby the appeals preferred by the petitioner under the provisions of the GST Act were dismissed as being beyond limitation as prescribed under Section 107 of GST Act.

3. Contention of learned counsel for the petitioner is that an ex-parte order came to be passed by respondent no.3 in purported exercise of power under Section 74 of the GST Act vide order dated 12.06.2024. He draws my attention to argue that even no opportunity of hearing was granted and the documents which were sought in the form of SIB report, which were proposed to be relied upon, was never provided to the petitioner.

4. It is argued that against the said order, the petitioner had approached this Court by filing a writ petition being Writ Tax No.220 of 2024, however, the same was disposed off vide judgment dated 04.09.2024. In the said judgment, it was observed that in case the petitioner files his reply within a period of ten days from today, the same shall be considered on merits and shall be decided as expeditiously as possible. Further directions for providing the SIB report was also passed.

5. Aggrieved against the said order passed by this Court, the petitioner approached the Hon'ble Supreme Court by filing SLP No.25574 of 2024 which came to be dismissed on 04.11.2024. The SLP was dismissed without going on the merits of the order passed. After the dismissal of the SLP on 04.11.2024, the petitioner preferred the regular appeal under Section 107 of GST Act on 06.11.2024, however, the same came to be dismissed by means of the impugned judgment.

6. In the said order, it was also observed that the petitioner has not deposited the mandatory requirement of 10% of pre-deposit and it was also noticed that the appeal was beyond limitation and the delay could not be condoned. The Tribunal also noticed the order of this Court in the case of M/s A V Construction vs. Commissioner and Ors.; Writ Tax No.819 of 2021 decided on 30.09.2021 wherein it was held that the principles of Section 5 of Limitation Act would have no application in the face of law which is a complete code and apart from the quantum of delay which can be condoned as prescribed under Section 107 of GST Act, the Tribunal did not have the power to invoke the principles of Section 5 of the Limitation Act to condone the delay.

7. In the light of the said, learned counsel for the petitioner argues that the petitioner was bonafidely pursuing his remedies against the assessment order, firstly by filing a writ petition before this Court and secondly by availing the remedy of SLP before the Hon'ble Supreme Court, and thus, the petitioner was entitled to the benefit of Section 14 of the Limitation Act as has been held in the case of M.P. Steel Corporation vs. Commissioner of Central Excise; (2015) 7 SCC 58. He further argues that the order under Section 74 of the GST Act is wholly arbitrary for the reasons that in the show-cause notice, there was no assertion/allegation that there exist any material so as to justify invoking of larger period of limitation under Section 74. He argues that to invoke the jurisdiction under Section 74, in contradiction to the powers conferred by Section 73, it is essential that power under Section 74 can only be invoked when tax is not paid or short paid by reasons of fraud or any wilful misstatement or suppression of facts. He argues that there were no allegation, leave alone finding, in the impugned order to justify invocation of power under Section 74 of the GST Act. He further argues that even the documents proposed to be relied upon being the SIB report, was never provided and thus, for all the reasons, the impugned orders deserve to be quashed.

8. Learned Standing Counsel, based upon instructions and counter affidavit, argues that the SIB report was directed to be collected by the assessee, however, he did not do so. It is further argued that the petitioner has already approached this Court by filing a writ petition which has been disposed off, thus, the validity of the order of assessment cannot be seen again in a subsequent writ petition. He further argues that the petitioner was granted ten days' time by this Court to file and avail the remedy of appeal which he chose not to do so and thus, it is the petitioner who is to be blamed for him not being vigilant in pursuing the remedies prescribed under law, as such, the writ petition should be dismissed.

9. As regards the argument with regard to the applicability of Section 14 of the Limitation Act, it is argued that the order is silent on that aspect.

10. Considering the submissions made at the Bar, prima-facie, the petitioner was bonafidely pursuing his remedy before this Court as well as before the Supreme Court as is evident from the two orders passed, and immediately after passing of the order by the Supreme Court on 04.11.2024, the petitioner preferred the appeals on 06.11.2024. The period of the petitioner having spent before the High Court and the Supreme Court could be pleaded by him to be excused in view of the mandate of Section 14 of the Limitation Act. This aspect has not been considered in the impugned orders.

11. Thus, finding the impugned orders dated 11.11.2024 & 23.11.2024 to be improper insofar as it fails to consider the mandatory prescriptions contained in Section 14 of the Limitation Act, the orders impugned cannot be sustained and are quashed.

12. Matter is remanded to the appellate authority to pass orders afresh after considering the mandate of M.P. Steel Corporation (supra) and Suryachakra Power Corporation Limited vs. Electricity Department Represented by Its Superintending Engineer, Port Blair and Ors.; (2016) 16 SCC 152.

13. The said order shall be passed by the appellate authority within a period of three weeks.

14. The petitioner would be at liberty to place any other relevant documents/case-laws that he may think appropriate before the appellate authority.

15. Present petition stands allowed in above terms.

Order Date :- 10.4.2025