Heard Mr. P.Karthik Ramana, learned counsel for the petitioner; Mr. B.Narasimha Sharma, learned counsel for respondents 1 and 2; Mr. Krishna Swamy for the learned Assistant Solicitor General of India appearing for respondent No.3; and Sri K.Raji Reddy, learned counsel for respondents 4 and 5.
2. By filing this petition under Article 226 of the Constitution of India, petitioner has assailed legality and validity of Order-in- Original dated 28.03.2019 passed by respondent No.1 under Section 73 of the Central Goods and Services Tax Act, 2017 (briefly ‘the Act’ hereinafter).
3. From a perusal of the Order-in-Original, we find that petitioner had failed to file Goods and Service Tax (GST) returns since October, 2017 to December, 2018. After the discussions and findings recorded in paragraph No.10 of the Order-in-Original, respondent No.1 passed the following order:
a) I confirm the demand of ₹ 1,54,76,440/- (rupees one crore fifty four lakhs seventy six thousand four forty only), which is the tax amount not paid during the period December, 2017 to December, 2018 as per Section 73(1) of the CGST Act, 2017 read with section 20 of IGST Act, 2017.
b) I order for recovery of Interest, at the rate of 18% under Section 50(1) of CGST Act, 2017 read with Section 20 of IGST Act, 2017 for the period from October, 2017 to December, 2018 during which the tax payment to government is delayed.
c) I impose penalty under section 122(1)(iii) read with section 127 of CGST / TGST Act, 2017 and Section 20 of IGST Act, 2017 which comes around ₹ 64,87,579/- (Sixty four lakhs eighty seven thousand five seventy nine only) as mentioned at 10(b).
d) I impose penalty of ten percent of the amount of tax amount of ₹ 1,79,10,396, as mentioned at 10(a) above, under Section 73(9) of the CGST / TGST Act, 2017.
e) I impose penalty under Section 73(11) of CGST / TGST Act, 2017 read with Section 2 of IGST Act, 2017 which comes out to be ₹ 2,24,602 (Two lakhs twenty four thousand six hundred two only)
f) I order for initiation of recovery proceedings as per Section 79 read with Section 78 of CGST Act, 2017 read with Section 20 of IGST Act, 2017 if the tax amount due to the government, interest and penalty, as applicable, are not paid within one month from the date of issue of this order.
4. According to learned counsel for the petitioner, respondent No.1 ought to have proceeded under Section 62 of the Act, since it is a case of non-filing of return. Referring to Section 62, he submits that as per sub-section (1) thereof, provision of Section 62 has overriding effect over Sections 73 and 74. Notwithstanding the same, respondent No.1 erroneously assumed jurisdiction and passed the Order-in- Original under Section 73 of the Act. He submits that in terms of the Order-in-original petitioner has deposited the tax. Despite the same, Superintendent of Central Tax, Nizamabad Branch issued notice to the petitioner on 09.08.2021 calling upon the petitioner to pay the penalty of ₹ 85,03,221.00 (Rupees eighty five lakhs, three thousand, two hundred and twenty one only).
5. We find that against an order passed under Section 73 of the Act, the person aggrieved has a remedy of filing appeal to the appellate authority under Section 107 of the Act. As per sub-section (1) thereof, such appeal may be filed within three months from the date of communication of the order or decision. As per subsection (4), if the appellate authority is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, it shall allow the appellant to present the same within a further period of one month.
6. In the instant case, the order under Section 73 was passed on 28.03.2019 and communicated since petitioner has deposited the tax in terms of the said order. Period of three months and the extended period of further one month have expired long back. It is settled law that when the statute does not provide for further extension of limitation beyond the extended period, the limitation for filing appeal would end on the expiry of the extended period of limitation provided by the statute. To circumvent the above situation recourse to a proceeding under Article 226 of the Constitution of India is not permissible. This has been explained by the Supreme Court in the recent decision reported in ASSISTANT COMMISSIONER OF STATE TAX vs. M/S COMMERCIAL STEEL LIMITED Civil Appeal No.5121 of 2021 (Arising out of SLP(C) No.13639 of 2021 @ D No.11555 of 2020) dated 03-09-2021.
7. Though learned counsel for the petitioner has argued that it is a case of jurisdictional error or wrongful assumption of jurisdiction by the assessing officer when it was not available and thereby a case for invoking the jurisdiction under Article 226 of the Constitution of India, we are not impressed by the submission so made.
8. Respondent No.1 had the jurisdiction to assess the petitioner, whether it is under Section 62 or under Section 73 of the Act. Even if we accept the contention of learned counsel for the petitioner that respondent No.1 ought to have proceeded under Section 62 and not under Section 73, it is at best a case of invoking a wrong legal provision instead of another, but certainly that will not make it a case of no jurisdiction, or lack of jurisdiction. Acting without jurisdiction is one thing and invoking a wrong provision while acting within jurisdiction is another thing.
9. Moreover, we may mention that petitioner has partly complied with the Order-in-Original by paying the tax dues. If that be the position, then there is acceptance of the Order-in-Original. Thereafter, part challenge to the Order-in-Original may not be maintainable.
10. At this stage, we may also refer to the decision of the Supreme Court in Assistant Commissioner, Kakinada Vs. M/s. Glaxo Smith Kline Consumer Health Care Limited AIR 2020 SC 2819. The moot question before the Supreme Court in the above appeal was: whether the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India ought to entertain a challenge to the assessment order on the sole ground that the statutory remedy of appeal against that order stood foreclosed by the law of imitation? In that case, Supreme Court had considered the provision of filing an appeal under the Andhra Pradesh Value Added Tax Act, 2005. As per Section 31 of the said Act, an appeal could be preferred against the assessment order within 30 days of service of the order which period is extendable by a further period of 30 days if the appellate authority is satisfied that the appellant had sufficient cause for not preferring the appeal within the initial period of 30 days. In that case the appeal was filed even beyond the extended period of limitation which was rejected by the appellate authority on the ground that it had no power to condone the delay beyond 30 days. However, the High Court under Article 226 of the Constitution of India entertained the writ petition challenging the order of assessment and set aside the order of assessment, relegating the petitioner to the assessing authority for reconsideration of its assessment. It was in this factual backdrop the Supreme Court answered the question framed by holding that the High Court ought not to have entertained the writ petition, whereafter the judgment of the High Court was set aside and the writ petition was dismissed.
11. In such circumstances, we are of the considered opinion that challenge to the Order-in-Original dated 28.03.2019 cannot be entertained in the present writ proceeding.
12. Accordingly writ petition is dismissed. However there shall be no order as to costs.
13. Interlocutory applications pending, if any, shall stand closed.