ORDER
1. The petitioner, a proprietorship concern, bearing Registration No. GSTIN 21DHEPS0723Q1ZS under the provisions of the Central Goods and Services Tax Act, 2017 and the Odisha Goods and Services Tax Act, 2017 (collectively referred to as ‘GST Act’), challenged the order dated 22nd October, 2024 passed under Section 73 of the GST Act pertaining to the tax periods from April, 2020 to March, 2021 by the Assistant Commissioner of State Tax, Nabarangpur Circle in the present writ petition invoking 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):
“Under the aforesaid circumstances, it is prayed therefore that this Hon’ble Court may be graciously pleased to:
W.P.(C) No.30012 of 2025 Page 2 of 22
| (a) | | Admit the Writ Petition; |
| (b) | | Issue rule nisi calling upon the Opposite Party as to why the DRC-07 Order dated 22.10.2024 passed by the Opp. Party vide Annexure-3, shall not be quashed being illegal, arbitrary and unsustainable in the eyes of law; |
| (c) | | If the opposite party do not show cause or show insufficient cause make the rule absolute; |
| (d) | | To pass such further order/orders, direction/directions, writ/writs as may be deemed fit and proper; |
| (e) | | To allow the writ petition; |
And for this act of kindness, the petitioner shall as in duty bound and ever pray.”
2. It is emanating from contents of the writ petition that the adjudicating authority having detected discrepancies in the figures reflected in the returns in Form GSTR-2A vis-a-vis GSTR-3B relating to claim of Input Tax Credit (ITC) issued notice in Form GST ASMT-10 on 26th April, 2024.
2.1. Accordingly, summary of show-cause notice in Form GST DRC-01 dated 27th June, 2024 to proceed with adjudication under Section 73 of the GST Act read with Rule 142 of the GST Rules for the tax periods from April, 2020 to March, 2021 has been issued. The notice contemplated detailed fact and figures culled out from the returns depicting therein excess Input Tax Credit. Consequent thereupon, an order dated 22nd October, 2024 under said Section has been passed and a demand in Form GST DRC-07 dated 22nd October, 2024 has been served upon the petitioner.
2.2. The petitioner challenged the said order along with demand notice in the instant writ petition.
3. Mr. Romeet Panigrahi, learned Advocate appearing on behalf of the petitioner submitted that the impugned order is illegal, arbitrary and unsustainable in the eye of law and pleaded that there being no other speedy, efficacious and alternative remedy than to invoke the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India (paragraph-9 of the writ petition), the writ petition deserves to be entertained.
3.1. It is contended by the learned counsel for the petitioner that reverse burden being cast upon the recipient for the purpose of availing benefit of Input Tax Credit under Section 16(2)(c) of the GST Act, the adjudicating authority misdirected himself by raising demand against the petitioner for the fault of supplier, who alleged not to have discharged tax liability and/or file returns within a stipulated time.
3.2. He further claimed that Section 16 of the GST Act comes for substantive right to avail Input Tax Credit against purchase of goods from supplier holding valid Registration Certificate. It is claimed that when the purchases are not doubted and its genuineness is not questioned, the impugned order disallowing Input Tax Credit in the hands of present petitioner is not only arbitrary, but also the exercise of power is whimsical and fanciful.
4. In reply to such contention advanced by the counsel for the petitioner, vehemently opposing the maintainability of the writ petition, Mr. Sunil Mishra, learned Standing Counsel for Commercial Tax and Goods and Services Tax Organization urged that circumventing the alternative remedy available under the statute, the petitioner having approached this Court directly after the period of limitation provided under Section 107 of the GST Act, the writ petition is not maintainable at all.
5. Heard learned counsel appearing for the petitioner and learned Standing Counsel appearing for the Department-opposite party.
6. On perusal of order passed under Section 73 of the GST Act, the adjudicating authority has compared the returns while undertaking scrutiny under Section 61 of the GST Act read with Rule 99 of the GST Rules for the tax periods from April, 2020 to March, 2021 and noticed discrepancies and, accordingly, the notices were issued.
6.1. As is revealed from order under Section 73 of the GST Act, the Assessing Authority has recorded the following:
“And whereas the tax payer has been intimated this discrepancy in Form GST ASMT-10 vide Ref No.ZD210424028011A. Date 26.04.2024 as per provision u/s.61 of the CGST/SGST Act r/w Rule 99(1) of CGST/SGST Rules with a direction to explain the above mentioned discrepancy along with supporting documents in Form GST ASMT-11 by dated 26.05.2024. But neither you have furnished any explanation within stipulated period of time nor has complied in any manner to the said intimation of discrepancies.
Thus, it is ascertained and established from his disclosed the return figure that he has made incorrect self-assessment in the statutory return.”
6.2. Since there was no response on the part of the petitioner, the adjudicating authority appears to have proceed to determine the tax liability on the basis of the material available on record with reference to returns furnished by the petitioner. Though such order was passed way back in the year 2024, no step was taken by the petitioner for ventilating its grievance. The writ petition is silent about not responding to the notices during the course of proceeding under Section 73.
6.3. It appears it is a myth on the part of the petitioner to aver in the writ petition that there is absence of alternative remedy. Section 107 of the GST Act provides for remedy of appeal to question any decision or order passed under the GST Act by an adjudicating authority. Sub-section (4) of the Section 107 of the GST Act contemplates period of limitation, which reads as under:
“(4) The Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or six months, as the case may be, allow it to be presented within a further period of one month.”
6.4. A bare reading of the aforesaid provision, it transpires that the appellate authority is not empowered to exercise his discretion to condone the delay beyond the period specified under subsection (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.
6.5. There is no pleading available on record to demonstrate that there was sufficient reason which prevented the petitioner from approaching this Court within the statutory period. Mere making statement that the petitioner has no other speedy, efficacious and alternative remedy would not constitute sufficient cause. This Court cannot be oblivious of the position as spelt out in the case of Orissa Mineral Development Company Ltd. v. Commissioner of Sales Tax (1960) 11 STC 12 (Ori) / AIR 1960 Ori 79, wherein it has highlighted as follows:
“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.
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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.
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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 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 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 interState 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. ***”
6.6. In the present case, the order impugned is passed on 22nd October, 2024, whereas the writ petition is filed on 23rd October, 2025. 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.
6.7. This Court is taken to a decision rendered in Tata Steel Ltd. v.. Raj Kumar Banerjee (SC)/ (2025) 5 SCR 814. After review of catena of 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. 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 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.”
6.8. The Division Bench of this Court 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 Rahul Spares Pvt. Ltd. v. Chief Commissioner of C.T. & GST (Orissa)/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 to 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.”
6.9. Reference can also be made to the decision rendered in the case of Laxmi Construction v. State Tax Officer, CT & GST GSTL 293 (Orissa)/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 v. Glaxo Smith Kline Consumer Health Care Ltd. GSTL 305 (SC)/4 SCR 602 and the decision of Rajasthan High Court in Malik Khan v. Chief Commissioner GST and Central Excise GSTR 66 (Raj), to hold as follows:
“7. In Assistant Commissioner (CT) LTU, Kakinada Vrs. Glaxo Smith Kline Consumer Health Care Ltd., (2020) Assistant Commissioner (CT) LTU v. Glaxo Smith Kline Consumer Health Care Ltd. (SC)/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 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 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.’
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:
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(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 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.”
7. With the aforesaid legal perspective of exercise of power under Article 226/227 of the Constitution of India to entertain writ petition vis-a-vis limitation provided under the statute, examining the fact of the present case, there is no scintilla of scope to maintain the writ petition inasmuch as no cause has been shown to approach this Court by-passing the remedy available under the GST Act. The impugned order under Section 73 of the GST Act being passed on 22nd October, 2024 and the writ petition being filed on 23rd October, 2025, there has been inordinate delay of around one year. The petitioner has not explained reason for the inordinate delay that prevented it to approach this Court by way of pleading in the writ petition.
8. It is manifest on perusal of record that only to circumvent the alternative remedy available under the statute and thwarting conditions hedged for filing an appeal, the petitioner has approached this Court by way of filing the present writ petition challenging the adjudication order.
9. This Court bearing in mind the enunciation of law as discussed above and also the principles laid down by the Hon’ble Supreme Court in the cases of Commissioner of Income-tax v. Chhabil Dass Agarwal (SC)/(2014) 1 SCC 603 =2013 SCC OnLine SC 717, Executive Engineer v.. Sri Seetaram Rice Mill, (2011) 15 (ADDL.) SCR 211, Whirlpool Corporation v. Registrar of Trade Marks, Mumbai,(1998) 8 SCC 1 and Godrej Sara Lee Ltd. Vrs. Excise & Taxation Officer-cum-Assessing Authority, Godrej Sara Lee Ltd. v. Excise & Taxation Officer-cum Assessing Authority (2023) 3 SCR 871, observes that the present writ petition is not at all “maintainable”, much less “entertainable”. It may also be pertinent to observe that rejection of claim of input tax credit under Section 16 of the GST Act essentially sets up disputed question of fact for adjudication by the authority conferred with power under the statute. Therefore, this Court is afraid to entertain this writ petition as serious disputed fact is involved.
10. In view of the above and discussions made supra, the writ petition, sans merit, stands dismissed; and pending interlocutory application(s), if any, is also dismissed accordingly.