# Atlantis Intelligence Ltd v. Union of India & Ors

- **Citation:** (2025) 8 ILRA 278
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-11
- **Case number:** Writ Tax No. 3608 of 2025
- **Bench:** Shekhar B. Saraf, Praveen Kumar Giri
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/atlantis-intelligence-ltd-v-union-of-india-ors-53669
- **Pages:** 14

## Headnote

Article 226 of the Constitution is maintainable
against an order under Section 74 of the CGST
Act, 2017, after expiry of the statutory appeal
period prescribed under Section 107.

Headnotes
Central Goods and Services Tax Act, 2017
- SS. 74, 107, and 169 - Limitation for
Appeal - Maintainability - Delay in filing
statutory appeal - Condonation of delay
beyond prescribed period - Service of the
order by registered email is a valid service
and the date on which such service is
made would count as the date for the
purpose of limitation - S. 107(4) of the
8 All. Atlantis Intelligence Ltd. Vs. Union of India & Ors.
279
Act
prescribes
a
specific
period
of
limitation (three months plus one month
on sufficient cause) and thereby excludes
S. 5 of the Limitation Act, 1963.
Limitation
Act,
1963
-
S.
29(2)
-
Application of S. 5 of the Limitation Act
stands excluded by virtue of S. 29(2)
where a special statute prescribes its own
limitation period.
Constitution of India - Article 226 - Writ
jurisdiction
-
Cannot
be
invoked
to
circumvent
statutory
limitation
or
appellate procedure - High Court's plenary
powers not wider than those under Article
142 - writ petition not maintainable after
expiry of statutory limitation period.
Held: The service of the impugned order on the
petitioner by registered email on January 31,
2025, was valid service, and the limitation
period
for
filing
the
statutory
appeal
commenced from that date - The writ petition
was filed on July 3, 2025, which was after the
limitation period for filing an appeal under
Section 107 of the Act (three months plus a
maximum one-month condonable period) had
expired - Entertaining the writ petition would
amount to allowing the petitioner to circumvent
the
statutory
appellate
procedure
and
undermine the statutory regime - The present
case was neither a case of gross violation of
natural justice nor patent illegality that would
warrant the court's indulgence in its writ
jurisdiction to condone the delay - Petition
dismissed - No order as to costs - liberty
granted to proceed as per law. (Paras
6,14,15,16,17,18) (E-7)

Case Law Cited
Singh Enterprises v. Commissioner of Central
Excise, (2008) 3 SCC 70; Commissioner of
Customs & Central Excise v. Hongo India Pvt.
Ltd.,
(2009)
5
SCC
791;Assistant
Commissioner (CT) LTU, Kakinada v. Glaxo
Smith Kline Consumer Health Care Ltd., (2020)
19 SCC 681;Malik Khan v. Chief Commissioner
of GST & Central Excise, (2023) 120 GSTR
66;M/s Thekedar Pankaj Sharma v. State of
Rajasthan, 2024: RJ-JP:17881-DB;Addichem
Speciality LLP v. Special Commissioner, (2025)
140 GSTR 451;Garg Enterprises v. State of
U.P., (2024) 129 GSTR 299

List of Acts
Central Goods and Services Tax Act, 2017;
Limitation Act, 1963; Constitution of India

List of Keywords
Limitation - Statutory Appeal - Writ Jurisdiction -
Maintainability - Special Statute - Natural Justice
- Delay Condonation - valid service by email - in
limine dismissal - self-contained code - statutory
remedy - special statute.

Case Arising From
Order-in-Original
No.
84/AC/CGST/DivI/N/2024-25 dated 31.01.2025 passed by the
Assistant
Commissioner,
CGST,
Division-I,
Noida.

Appearances for Parties
Advs. for the Petitioner:
Mohit Singh, Ms. Anjali Jha Manish
Advs. for the Respondents:
Mr. Gaurav Mahajan, Sr. Standing Counsel
(CGST); Mr. Arvind Kumar Mishra, Standing
Counsel (State of U.P.); A.S.G.I.; C.S.C.;
Saumitra Singh.

## Text

_Characters 0–39,923 of 49,151. This is a partial read: ask again with offset=39923 for what follows._

278 INDIAN LAW REPORTS ALLAHABAD SERIES
required for the purpose of establishment of
LPG distributorship and applicant did not
have any alternative land for establishment
which he could offer for establishment of
LPG distributorship therefore, the Clause
16.4 of the guidelines is not attracted in the
present case.

32. In case the applicant did not fulfil
the criteria of land for the establishment of
a Government showroom, it is only during
the FVC process that he could offer an
alternative land which meets the criteria
mentioned in Clause 16.4. In the instant
case, the petitioner has not disclosed the
date of the FVC process nor has stated that
he has an alternative land meeting the
criteria provided in Clause 16.4 of the
guidelines. In the absence of any such
pleading in the writ petition, the petitioner
cannot claim the benefit of Clause 16.4 of
the guidelines.

33. So far as argument of petitioner
that
Clause
16.4
be
given
liberal
interpretation is concerned, we find that
said argument in the facts of present case is
fallacious and lacks merit for the reason
that petitioner has not disclosed in the writ
petition the date of FVC process, and
further on the date of FVC process, he
fulfilled the land criteria as stipulated in the
Guidelines. In the absence of any such
pleading in the writ petition, no positive
finding can be returned regarding the
entitlement of the petitioner in respect to
the benefit of Clause 16.4 of the guidelines.

34. So far as the judgment relied upon
by the learned counsel for the petitioner in
the case of Rahul Singh (supra) is
concerned, the same is not applicable in the
facts of the present case inasmuch as the
said judgment has been rendered on the
basis of the guidelines issued in the year
2023 whereas the petitioner will be
governed by the guidelines applicable on
the date of application of petitioner,
therefore, the said judgment does not come
to the rescue of the petitioner.

35. Thus, for the reasons given above,
the writ petition is dismissed with no order
as to cost.
----------
(2025) 8 ILRA 278
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2025

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
THE HON'BLE PRAVEEN KUMAR GIRI, J.

Writ Tax No. 3608 of 2025

Atlantis Intelligence Ltd. ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Mohit Singh

Counsel for the Respondents:
A.S.G.I., C.S.C., Gaurav Mahajan, Saumitra
Singh

Issue for Consideration
Matter pertains to whether a writ petition under
Article 226 of the Constitution is maintainable
against an order under Section 74 of the CGST
Act, 2017, after expiry of the statutory appeal
period prescribed under Section 107.

Headnotes
Central Goods and Services Tax Act, 2017
- SS. 74, 107, and 169 - Limitation for
Appeal - Maintainability - Delay in filing
statutory appeal - Condonation of delay
beyond prescribed period - Service of the
order by registered email is a valid service
and the date on which such service is
made would count as the date for the
purpose of limitation - S. 107(4) of the
8 All. Atlantis Intelligence Ltd. Vs. Union of India & Ors.
279
Act
prescribes
a
specific
period
of
limitation (three months plus one month
on sufficient cause) and thereby excludes
S. 5 of the Limitation Act, 1963.
Limitation
Act,
1963
-
S.
29(2)
-
Application of S. 5 of the Limitation Act
stands excluded by virtue of S. 29(2)
where a special statute prescribes its own
limitation period.
Constitution of India - Article 226 - Writ
jurisdiction
-
Cannot
be
invoked
to
circumvent
statutory
limitation
or
appellate procedure - High Court's plenary
powers not wider than those under Article
142 - writ petition not maintainable after
expiry of statutory limitation period.
Held: The service of the impugned order on the
petitioner by registered email on January 31,
2025, was valid service, and the limitation
period
for
filing
the
statutory
appeal
commenced from that date - The writ petition
was filed on July 3, 2025, which was after the
limitation period for filing an appeal under
Section 107 of the Act (three months plus a
maximum one-month condonable period) had
expired - Entertaining the writ petition would
amount to allowing the petitioner to circumvent
the
statutory
appellate
procedure
and
undermine the statutory regime - The present
case was neither a case of gross violation of
natural justice nor patent illegality that would
warrant the court's indulgence in its writ
jurisdiction to condone the delay - Petition
dismissed - No order as to costs - liberty
granted to proceed as per law. (Paras
6,14,15,16,17,18) (E-7)

Case Law Cited
Singh Enterprises v. Commissioner of Central
Excise, (2008) 3 SCC 70; Commissioner of
Customs & Central Excise v. Hongo India Pvt.
Ltd.,
(2009)
5
SCC
791;Assistant
Commissioner (CT) LTU, Kakinada v. Glaxo
Smith Kline Consumer Health Care Ltd., (2020)
19 SCC 681;Malik Khan v. Chief Commissioner
of GST & Central Excise, (2023) 120 GSTR
66;M/s Thekedar Pankaj Sharma v. State of
Rajasthan, 2024: RJ-JP:17881-DB;Addichem
Speciality LLP v. Special Commissioner, (2025)
140 GSTR 451;Garg Enterprises v. State of
U.P., (2024) 129 GSTR 299

List of Acts
Central Goods and Services Tax Act, 2017;
Limitation Act, 1963; Constitution of India

List of Keywords
Limitation - Statutory Appeal - Writ Jurisdiction -
Maintainability - Special Statute - Natural Justice
- Delay Condonation - valid service by email - in
limine dismissal - self-contained code - statutory
remedy - special statute.

Case Arising From
Order-in-Original
No.
84/AC/CGST/DivI/N/2024-25 dated 31.01.2025 passed by the
Assistant
Commissioner,
CGST,
Division-I,
Noida.

Appearances for Parties
Advs. for the Petitioner:
Mohit Singh, Ms. Anjali Jha Manish
Advs. for the Respondents:
Mr. Gaurav Mahajan, Sr. Standing Counsel
(CGST); Mr. Arvind Kumar Mishra, Standing
Counsel (State of U.P.); A.S.G.I.; C.S.C.;
Saumitra Singh.

(Delivered by Hon'ble Shekhar B. Saraf, J.)

1. Heard Ms. Anjali Jha Manish,
learned counsel appearing on behalf of the
petitioner, Mr. Gaurav Mahajan, learned
Senior Standing Counsel appearing on
behalf of the respondent No.2/Assistant
Commissioner, CGST and Mr. Arvind
Kumar Mishra, learned Standing Counsel
for the State-respondent.

2. This is a writ petition under Article
226 of the Constitution of India, wherein
the writ petitioner is aggrieved by the
impugned order in original dated January 1,
2025
passed
by
the
Assistant
Commissioner,
CGST,
Division
-I,
NOIDA. The prayers made out in the above
writ petition are delineated below:

"A. Issue a writ, order or
direction in the nature of certiorari to
quash the Order In Original bearing
280 INDIAN LAW REPORTS ALLAHABAD SERIES
No.84/AC/CGST/Div-I/N/2024-25
dated
January 31, 2025 passed by the learned
Assistant Commissioner, CGST, Division-I,
Noida; and/or.

B. Issue a writ, order or direction
in the nature of certiorari to quash the
Show Cause Notice dated 23.02.2022
issued
by
the
Learned
Assistant
Commissioner, CGST, Division -I Noida
and/or

C.
Stay
the
operation
of
impugned Order in Original bearing
No.84/AC/CGST/Div-I/N/2024-25
dated
31.01.2025,
passed
by
the
Learned
Assistant Commissioner, CGST, Division -
I, Noida, during the pendency of the
present petition;

D. Interim and ad-interim reliefs
in terms of prayer clauses as above;"

3. Upon perusal of the record, it is
clear that the impugned order was passed
on January 31, 2025, while the writ petition
was filed on July 3, 2025. It is to be noted
that Section 107 of the Central Goods and
Services
Tax
Act,
2017
(hereinafter
referred to as the 'Act'), provides for a
statutory appeal against the order passed
under Section 74 of the Act. The period
prescribed therein is three months. By way
of sub-section (4) to Section 107 of the Act,
if sufficient cause is shown, the period may
be extended for a month. As the Act
provides for a specific period for filing of
appeal and also provides for an extended
period, if sufficient cause is shown for
condoning the delay in filing of the appeal,
Section 29(2) of the Limitation Act, 1963
would be applicable. Section 29(2) of the
Limitation Act reads as under:

"29. Savings.-

(1) .....

(2) Where any special or local
law prescribes for any suit, appeal or
application a period of limitation different
from the period prescribed by the Schedule,
the provisions of section 3 shall apply as if
such period were the period prescribed by
the Schedule and for the purpose of
determining any period of limitation
prescribed
for
any
suit,
appeal
or
application by any special or local law, the
provisions contained in sections 4 to 24
(inclusive) shall apply only in so far as, and
to the extent to which, they are not
expressly excluded by such special or local
law. (3) Save as otherwise provided in any
law for the time being in force with respect
to marriage and divorce, nothing in this
Act shall apply to any suit or other
proceeding under any such law. (4)
Sections 25 and 26 and the definition of
"easement" in section 2 shall not apply to
cases arising in the territories to which the
Indian Easements Act, 1882 (5 of 1882),
may for the time being extend."

Ergo,
Section
29(2)
clearly
excludes the application of Section 5 of the
Limitation
Act
for
the
purpose
of
condonation of delay in special statutes.

4. It is admitted by the petitioner that
the petitioner was served by registered
email on the very same date of passing of
the impugned order. However, learned
counsel appearing on behalf of petitioner,
submits that there was no service made to
the petitioner by way of registered post.

5. Upon perusal of Section 169 of the
Act, we are of the view that in the event the
service is made by way of the registered
email, the same would be a good service
and limitation would start from that date
itself. The petitioner cannot be allowed to
take a ground that the other modes of
service that have been provided in clauses
(a) to (f) of sub-section (1) to Section 169
of the Act have not been followed. If one
8 All. Atlantis Intelligence Ltd. Vs. Union of India & Ors.
281
were to read that for service to be complete
more than one mode as has been prescribed
under Section 169 of the Act is required to
be followed, the entire purpose of the
provision would become absurd. Such a
reading is neither plausible nor can be
countenanced by us.

6. Accordingly, we are of the view that
service of the order by registered email is a
valid service and the date on which such
service is made would count as the date for
the purpose of limitation.

7. The Supreme Court in Singh
Enterprises v. Commissioner of Central
Excise, reported in (2008) 3 SCC 70 has
held that under the statute where specific
limitation period is prescribed, Section 5 of
the Limitation Act, has no applicability.
Singh Enterprises (supra) categorically
states that an appeal is required to be filed
by the petitioner within the time frame
provided in the special Statute. The
relevant paragraph of the judgment is
quoted hereinbelow:

"10. Sufficient cause
is an
expression which is found in various
statutes. It essentially means as adequate
or enough. There cannot be any straitjacket
formula for accepting or rejecting the
explanation furnished for delay caused in
taking steps. In the instant case, the
explanation offered for the abnormal delay
of nearly 20 months is that the appellant
concern was practically closed after 1998
and it was only opened for some short
period.
From
the
application
for
condonation of delay, it appears that the
appellant has categorically accepted that
on receipt of order the same was
immediately handed over to the consultant
for filing an appeal. If that is so, the plea
that because of lack of experience in
business there was delay does not stand to
reason. ITC case [(1998) 8 SCC 610] was
rendered taking note of the peculiar
background facts of the case. In that case
there was no law declared by this Court
that even though the statute prescribed a
particular period of limitation, this Court
can direct condonation. That would render
a specific provision providing for limitation
rather otiose. In any event, the causes
shown for condonation have no acceptable
value. In that view of the matter, the appeal
deserves to be dismissed which we direct.
There will be no order as to costs."

8. The three-judges Bench of the
Supreme Court in Commissioner of
Customs and Central Excise v. Hongo
India Private Limited and Another,
reported in (2009) 5 SCC 791 while dealing
with the issue of condoning the delay
beyond the period specified in Section 35H of the Central Excise Act, 1944 has
reiterated the view of Singh Enterprises
(supra) and has held that time limit
prescribed for making reference and appeal
to High Court is absolute and unextendable
by Court under Section 5 of the Limitation
Act. The limitation cannot be extended by
applying a liberal interpretation. The
relevant paragraph of the judgment is
quoted hereinbelow:

"32. As pointed out earlier, the
language used in Sections 35, 35-B, 35-EE,
35-G and 35-H makes the position clear
that an appeal and reference to the High
Court should be made within 180 days only
from the date of communication of the
decision or order. In other words, the
language used in other provisions makes
the position clear that the legislature
intended
the
appellate
authority
to
entertain the appeal by condoning the
delay only up to 30 days after expiry of 60
282 INDIAN LAW REPORTS ALLAHABAD SERIES
days which is the preliminary limitation
period for preferring an appeal. In the
absence of any clause condoning the delay
by showing sufficient cause after the
prescribed period, there is complete
exclusion of Section 5 of the Limitation Act.
The High Court was, therefore, justified in
holding that there was no power to
condone the delay after expiry of the
prescribed period of 180 days."

9. The Supreme Court in Assistant
Commissioner (CT) LTU, Kakinada and
Others v. Glaxo Smith Kline Consumer
Health Care Ltd., reported in (2020) 19
SCC 681, has dealt with the moot question
as to whether the High Court in exercise of
its writ jurisdiction under Article 226 of the
Constitution of India ought to entertain
challenge to the assessment order on the
sole ground that the statutory remedy of
appeal against the order stood foreclosed
by the law of limitation. The Apex Court
while dealing with the issue of power of
appellate authority to condone delay under
Section 31 of the Andhra Pradesh Value
Added Tax, 2005 has held that if a
complete mechanism is provided for
challenging the assessment orders, that
mechanism solely has to be followed,
neither writ court nor Section 5 of the
Limitation Act can condone the delay
beyond prescribed statutory period. The
relevant paragraphs of the judgment are
quoted hereinbelow:

"16. Indubitably, the powers of
the High Court under Article 226 of the
Constitution are wide, but certainly not
wider than the plenary powers bestowed on
this Court under Article 142 of the
Constitution.
Article
142
is
a
conglomeration and repository of the entire
judicial powers under the Constitution, to
do complete justice to the parties. Even
while exercising that power, this Court is
required to bear in mind the legislative
intent and not to render the statutory
provision otiose. In a recent decision of a
three-Judge Bench of this Court in ONGC
v. Gujarat Energy Transmission Corpn.
Ltd.
[ONGC
v.
Gujarat
Energy
Transmission Corpn. Ltd., (2017) 5 SCC 42
: (2017) 3 SCC (Civ) 47] , the statutory
appeal filed before this Court was barred
by 71 days and the maximum time-limit for
condoning the delay in terms of Section 125
of the Electricity Act, 2003 was only 60
days. In other words, the appeal was
presented beyond the condonable period of
60 days. As a result, this Court could not
have condoned the delay of 71 days.
Notably, while admitting the appeal, the
Court had condoned the delay in filing the
appeal. However, at the final hearing of the
appeal, an objection regarding appeal
being barred by limitation was allowed to
be raised being a jurisdictional issue and
while dealing with the said objection, the
Court referred to the decisions in Singh
Enterprises v. CCE [Singh Enterprises v.
CCE, (2008) 3 SCC 70] , CCE v. Hongo
(India) (P) Ltd. [CCE v. Hongo (India) (P)
Ltd., (2009) 5 SCC 791] , Chhattisgarh
SEB v. CERC [Chhattisgarh SEB v. CERC,
(2010) 5 SCC 23] and Suryachakra Power
Corpn.
Ltd.
v.
Electricity
Deptt.
[Suryachakra
Power
Corpn.
Ltd.
v.
Electricity Deptt., (2016) 16 SCC 152 :
(2017) 5 SCC (Civ) 761] and concluded
that Section 5 of the Limitation Act, 1963
cannot be invoked by the Court for
maintaining an appeal beyond maximum
prescribed period in Section 125 of the
Electricity Act.

17. The principle underlying the
dictum in this decision would apply proprio
vigore to Section 31 of the 2005 Act
including to the powers of the High Court
under Article 226 of the Constitution.
8 All. Atlantis Intelligence Ltd. Vs. Union of India & Ors.
283
Notably, in this decision, a submission was
canvassed by the assessee that in the
peculiar facts of that case (as urged in the
present case), the Court may exercise its
jurisdiction under Article 142 of the
Constitution, so that complete justice can
be
done.
This
argument
has
been
considered and plainly rejected in the
following words : (ONGC case [ONGC v.
Gujarat Energy Transmission Corpn. Ltd.,
(2017) 5 SCC 42 : (2017) 3 SCC (Civ) 47] ,
SCC pp. 48-51, paras 12-16)

"12. In A.R. Antulay v. R.S.
Nayak [A.R. Antulay v. R.S. Nayak, (1988)
2 SCC 602 : 1988 SCC (Cri) 372] , while
explicating and elaborating the principles
under Article 142, Sabyasachi Mukharji, J.
(as his Lordship then was) opined thus :
(SCC p. 656, para 50)

'50. ... The fact that the rule was
discretionary did not alter the position.
Though Article 142(1) empowers the
Supreme Court to pass any order to do
complete justice between the parties, the
court cannot make an order inconsistent
with the fundamental rights guaranteed by
Part III of the Constitution. No question of
inconsistency between Article 142(1) and
Article 32 arose. Gajendragadkar, J.,
speaking [Prem Chand Garg v. Excise
Commr., AIR 1963 SC 996] for the
majority of the Judges of this Court said
that Article 142(1) did not confer any
power on this Court to contravene the
provisions of Article 32 of the Constitution.
Nor did Article 145 confer power upon this
Court to make rules, empowering it to
contravene
the
provisions
of
the
fundamental right. At AIR pp. 1002-03,
para 12 : SCR p. 899 of the Reports,
Gajendragadkar, J., reiterated that the
powers of this Court are no doubt very
wide and they are intended and "will
always be exercised in the interests of
justice". But that is not to say that an order
can be made by this Court which is
inconsistent with the fundamental rights
guaranteed by Part III of the Constitution.
It was emphasised that an order which this
Court could make in order to do complete
justice between the parties, must not only
be consistent with the fundamental rights
guaranteed by the Constitution, but it
cannot even be inconsistent with the
substantive provisions of the relevant
statutory laws. The court, therefore, held
that it was not possible to hold that Article
142(1) conferred upon this Court powers
which could contravene the provisions of
Article 32.'

13. The said decision has been
clarified by a Constitution Bench in Union
Carbide Corpn. v. Union of India [Union
Carbide Corpn. v. Union of India, (1991) 4
SCC 584] , wherein M.N. Venkatachaliah,
J. (as his Lordship then was) speaking for
the majority, ruled that : (SCC pp. 634-35,
para 83)

'83. It is necessary to set at rest
certain misconceptions in the arguments
touching the scope of the powers of this
Court
under
Article
142(1)
of
the
Constitution. These issues are matters of
serious public importance. The proposition
that a provision in any ordinary law
irrespective of the importance of the public
policy on which it is founded, operates to
limit the powers of the Supreme Court
under Article 142(1) is unsound and
erroneous. In both Prem Chand Garg v.
Excise Commr.[Prem Chand Garg v.
Excise Commr., AIR 1963 SC 996] , as well
as A.R. Antulay v. R.S. Nayak [A.R. Antulay
v. R.S. Nayak, (1988) 2 SCC 602 : 1988
SCC (Cri) 372] , cases the point was one of
violation of constitutional provisions and
constitutional rights. The observations as
to the effect of inconsistency with statutory
provisions were really unnecessary in those
cases as the decisions in the ultimate
284 INDIAN LAW REPORTS ALLAHABAD SERIES
analysis
turned
on
the
breach
of
constitutional rights. We agree with Shri
Nariman that the power of the Court under
Article 142 insofar as quashing of criminal
proceedings are concerned is not exhausted
by Section 320 or 321 or 482 CrPC or all
of them put together. The power under
Article 142 is at an entirely different level
and of a different quality. Prohibitions or
limitations or provisions contained in
ordinary laws cannot, ipso facto, act as
prohibitions
or
limitations
on
the
constitutional powers under Article 142.
Such prohibitions or limitations in the
statutes might embody and reflect the
scheme of a particular law, taking into
account the nature and status of the
authority or the court on which conferment
of powers - limited in some appropriate
way - is contemplated. The limitations
may not necessarily reflect or be based on
any fundamental considerations of public
policy. Shri Sorabjee, learned Attorney
General, referring to Garg case [Prem
Chand Garg v. Excise Commr., AIR 1963
SC 996] , said that limitation on the powers
under
Article
142
arising
from
"inconsistency
with
express
statutory
provisions of substantive law" must really
mean and be understood as some express
prohibition contained in any substantive
statutory law. He suggested that if the
expression "prohibition" is read in place
of "provision" that would perhaps convey
the appropriate idea. But we think that
such prohibition should also be shown to
be based on some underlying fundamental
and general issues of public policy and not
merely incidental to a particular statutory
scheme or pattern. It will again be wholly
incorrect to say that powers under Article
142 are subject to such express statutory
prohibitions. That would convey the idea
that
statutory
provisions
override
a
constitutional
provision.
Perhaps,
the
proper way of expressing the idea is that in
exercising powers under Article 142 and in
assessing the needs of "complete justice"
of a cause or matter, the Supreme Court
will take note of the express prohibitions in
any substantive statutory provision based
on some fundamental principles of public
policy and regulate the exercise of its
power and discretion accordingly. The
proposition does not relate to the powers of
the Court under Article 142, but only to
what is or is not "complete justice" of a
cause or matter and in the ultimate analysis
of the propriety of the exercise of the
power. No question of lack of jurisdiction
or of nullity can arise.'

14. In this regard, another
Constitution Bench in Supreme Court Bar
Assn. v. Union of India [Supreme Court
Bar Assn. v. Union of India, (1998) 4 SCC
409] opined : (SCC pp. 437-38, para 56)

'56. As a matter of fact, the
observations on which emphasis has been
placed by us from the Union Carbide case
[Union Carbide Corpn. v. Union of India,
(1991) 4 SCC 584] , A.R. Antulay case
[A.R. Antulay v. R.S. Nayak, (1988) 2 SCC
602 : 1988 SCC (Cri) 372] and Delhi
Judicial
Service
Assn.
v.
State
of
Gujarat[Delhi Judicial Service Assn. v.
State of Gujarat, (1991) 4 SCC 406] , go to
show that they do not strictly speaking
come
into
any
conflict
with
the
observations of the majority made in Prem
Chand Garg case [Prem Chand Garg v.
Excise Commr., AIR 1963 SC 996] . It is
one thing to say that "prohibitions or
limitations in a statute" cannot come in the
way of exercise of jurisdiction under
Article 142 to do complete justice between
the parties in the pending "cause or
matter" arising out of that statute, but quite
a different thing to say that while
exercising jurisdiction under Article 142,
this Court can altogether ignore the
8 All. Atlantis Intelligence Ltd. Vs. Union of India & Ors.
285
substantive provisions of a statute, dealing
with
the
subject
and
pass
orders
concerning an issue which can be settled
only through a mechanism prescribed in
another statute. This Court did not say so
in Union Carbide case [Union Carbide
Corpn. v. Union of India, (1991) 4 SCC
584] either expressly or by implication and
on the contrary it has been held that the
Supreme Court will take note of the express
provisions of any substantive statutory law
and regulate the exercise of its power and
discretion accordingly. ...'

15. From the aforesaid decisions,
it is clear as crystal that the Constitution
Bench in Supreme Court Bar Assn. v.
Union of India [Supreme Court Bar Assn.
v. Union of India, (1998) 4 SCC 409] , has
ruled that there is no conflict of opinion in
Antulay case [A.R. Antulay v. R.S. Nayak,
(1988) 2 SCC 602 : 1988 SCC (Cri) 372]
or in Union Carbide Corpn. Case [Union
Carbide Corpn. v. Union of India, (1991) 4
SCC 584] with the principle set down in
Prem Chand Garg v. Excise Commr. [Prem
Chand Garg v. Excise Commr., AIR 1963
SC 996] Be it noted, when there is a
statutory command by the legislation as
regards limitation and there is the
postulate that delay can be condoned for a
further period not exceeding sixty days,
needless to say, it is based on certain
underlined, fundamental, general issues of
public policy as has been held in Union
Carbide Corpn. Case [Union Carbide
Corpn. v. Union of India, (1991) 4 SCC
584].
As
the
pronouncement
in
Chhattisgarh SEB v. CERC [Chhattisgarh
SEB v. CERC, (2010) 5 SCC 23] , lays
down quite clearly that the policy behind
the Act emphasising on the constitution of a
special adjudicatory forum, is meant to
expeditiously decide the grievances of a
person who may be aggrieved by an order
of the adjudicatory officer or by an
appropriate Commission. The Act is a
special legislation within the meaning of
Section 29(2) of the Limitation Act and,
therefore, the prescription with regard to
the limitation has to be the binding effect
and the same has to be followed regard
being had to its mandatory nature. To put it
in a different way, the prescription of
limitation in a case of present nature, when
the statute commands that this Court may
condone the further delay not beyond 60
days, it would come within the ambit and
sweep of the provisions and policy of
legislation. It is equivalent to Section 3 of
the
Limitation
Act.
Therefore,
it
is
uncondonable and it cannot be condoned
taking recourse to Article 142 of the
Constitution.

16. We had stated earlier that we
will be adverting to the passage in
Suryachakra
Power
Corpn.
Ltd.v.
Electricity Deptt. [Suryachakra Power
Corpn. Ltd. v. Electricity Deptt., (2016) 16
SCC 152 : (2017) 5 SCC (Civ) 761] There,
the Court had referred to Section 14 of the
Limitation Act. It fundamentally relied on
M.P. Steel Corpn. v. CCE [M.P. Steel
Corpn. v. CCE, (2015) 7 SCC 58 : (2015) 3
SCC (Civ) 510] , wherein the Court after
referring to certain authorities, analysed
thus : (M.P. Steel Corpn. Case [M.P. Steel
Corpn. v. CCE, (2015) 7 SCC 58 : (2015) 3
SCC (Civ) 510] , SCC p. 91, para 43)

'43. ... when a certain period is
excluded
by
applying
the
principles
contained in Section 14, there is no delay to
be attributed to the appellant and the
limitation period provided by the statute
concerned continues to be the stated period
and not more than the stated period. We
conclude, therefore, that the principle of
Section 14 which is a principle based on
advancing the cause of justice would
certainly apply to exclude time taken in
prosecuting proceedings which are bona
286 INDIAN LAW REPORTS ALLAHABAD SERIES
fide and with due diligence pursued, which
ultimately end without a decision on the
merits of the case.'''
(emphasis in original and supplied)

Similarly, in State v. Mushtaq
Ahmad [State v. Mushtaq Ahmad, (2016) 1
SCC 315 : (2016) 1 SCC (Cri) 255] , this
Court opined that where minimum sentence
is provided for an offence then no court can
impose lesser punishment on ground of
mitigating factors.

18.
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.

19. We may now revert to the Full
Bench decision of the Andhra Pradesh
High Court in Electronics Corpn. of India
Ltd. [Electronics Corpn. of India Ltd. v.
Union of India, 2018 SCC OnLine Hyd 21 :
(2018) 361 ELT 22] , which had adopted
the view taken by the Full Bench of the
Gujarat High Court in Panoli Intermediate
(India) (P) Ltd. v. Union of India [Panoli
Intermediate (India) (P) Ltd. v. Union of
India, 2015 SCC OnLine Guj 570 : AIR
2015 Guj 97] and also of the Karnataka
High Court in Phoenix Plasts Co. v. CCE
[Phoenix Plasts Co. v. CCE, 2013 SCC
OnLine Kar 10432 : (2013) 298 ELT 481] .
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 2005
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 ONGC [ONGC v.
Gujarat Energy Transmission Corpn. Ltd.,
(2017) 5 SCC 42 : (2017) 3 SCC (Civ) 47]
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.
***

22. Suffice it to observe that this
decision is on the facts of that case and
cannot be cited as a precedent in support of
an argument that the High Court is free to
entertain the writ petition assailing the
8 All. Atlantis Intelligence Ltd. Vs. Union of India & Ors.
287
assessment order even if filed beyond the
statutory period of maximum 60 days in
filing appeal. The remedy of appeal is
creature of statute. If the appeal is
presented by the assessee beyond the
extended statutory limitation period of 60
days in terms of Section 31 of the 2005 Act
and is, therefore, not entertained, it is
incomprehensible as to how it would
become a case of violation of fundamental
right, much less statutory or legal right as
such.

23. Arguendo, reverting to the
factual matrix of the present case, it is
noticed that the respondent had asserted
that it was not aware about the passing of
assessment
order
dated
21-6-2017
although it is admitted that the same was
served on the authorised representative of
the respondent on 22-6-2017. The date on
which the respondent became aware about
the order is not expressly stated either in
the application for condonation of delay
filed before the appellate authority, the
affidavit filed in support of the said
application or for that matter, in the memo
of writ petition. On the other hand, it is
seen that the amount equivalent to 12.5%
of the tax amount came to be deposited on
12-9-2017 for and on behalf of respondent,
without filing an appeal and without any
demur - after the expiry of statutory
period of maximum 60 days, prescribed
under Section 31 of the 2005 Act. Not only
that, the respondent filed a formal
application under Rule 60 of the 2005
Rules on 8-5-2018 and pursued the same in
appeal, which was rejected on 17-8-2018.
Furthermore, the appeal in question
against the assessment order came to be
filed only on 24-9-2018 without disclosing
the date on which the respondent in fact
became aware about the existence of the
assessment order dated 21-6-2017. On the
other hand, in the affidavit of Mr Sreedhar
Routh, Site Director of the respondent
Company
(filed
in
support
of
the
application for condonation of delay before
the appellate authority), it is stated that the
Company
became
aware
about
the
irregularities committed by its erring
official (Mr P. Sriram Murthy) in the month
of July 2018, which presupposes that the
respondent must have become aware about
the assessment order, at least in July 2018.
In the same affidavit, it is asserted that the
respondent Company was not aware about
the assessment order, as it was not brought
to its notice by the employee concerned due
to his negligence. The respondent in the
writ petition has averred that the appeal
was rejected by the appellate authority on
the ground that it had no power to condone
the delay beyond 30 days, when in fact, the
order examines the cause set out by the
respondent and concludes that the same
was unsubstantiated by the respondent.
That finding has not been examined by the
High Court in the impugned judgment and
order [Glaxo Smith Kline Consumer
Healthcare Ltd. v. CCT, 2018 SCC OnLine
Hyd 1985] at all, but the High Court was
more impressed by the fact that the
respondent was in a position to offer some
explanation about the discrepancies in
respect of the volume of turnover and that
the respondent had already deposited
12.5% of the additional amount in terms of
the previous order passed by it. That
reason can have no bearing on the
justification for non-filing of the appeal
within the statutory period. Notably, the
respondent had relied on the affidavit of the
Site Director and no affidavit of the
employee concerned (P. Sriram Murthy,
Deputy Manager-Finance) or at least the
other employee [Siddhant Belgaonker,
Senior Manager (Finance)], who was
associated with the erring employee during
the relevant period, has been filed in
288 INDIAN LAW REPORTS ALLAHABAD SERIES
support of the stand taken in the
application for condonation of delay.
Pertinently, no finding has been recorded
by the High Court that it was a case of
violation of principles of natural justice or
non-compliance of statutory requirements
in any manner. Be that as it may, since the
statutory period specified for filing of
appeal had expired long back in August
2017 itself and the appeal came to be filed
by the respondent only on 24-9-2018,
without substantiating the plea about
inability
to
file
appeal
within
the
prescribed time, no indulgence could be
shown to the respondent at all.
***

25. Taking any view of the matter,
therefore, the High Court ought not to have
entertained the subject writ petition filed by
the respondent herein. The same deserved
to be rejected at the threshold."
(Emphasis added)

10. The Division Bench of the
Rajasthan High Court in Malik Khan v.
Chief Commissioner of GST & Central
Excise, reported in (2023) 120 GSTR 66
also examined a similar situation wherein
the assessee had not filed the statutory
appeal under Section 107 of the Act and
after the expiry of the limitation period
prescribed thereunder directly approached
the High Court. The Court reiterating the
judgment of Supreme Court in Glaxo
Smith Kline Consumer Health Care
Limited (supra) has held that such a writ
petition is not maintainable. The relevant
paragraphs of the judgment are quoted
hereinbelow:

"15. We are of the view that after
expiry of the limitation period of filing
appeal, the writ petition filed by the
petitioner challenging the impugned order
is not maintainable. This view of us is
getting support from the decision of the
honourable Supreme Court rendered in
Assistant
Commissioner
(CT)
LTU,
Kakinada (supra), which is also relied
upon by the counsel for the petitioner.

17. As observed earlier, 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 eight
months of the expiry of limitation, we are of
the view that as per the law laid down by
the honourable Supreme Court rendered in
Assistant
Commissioner
(CT)
LTU,
Kakinada's case (supra), the writ petition
filed by the petitioner cannot be entertained
as being not maintainable."

11. The Division Bench of Rajasthan
High Court in M/s Thekedar Pankaj
Sharma v. State of Rajasthan; reported in
2024:RJ-JP:17881-DB has also specifically
dealt with the identical issue involved in
the present writ petition and outrightly
rejected
the
writ
petition
as
not
maintainable in view of the judgment of
Supreme Court in Glaxo Smith Kline
Consumer Health Care Limited (supra).
The relevant paragraphs of the judgment
are quoted hereinbelow:

"2. Though number of grounds
have been urged in the writ petition as also
before this Court to assail the correctness
and validity of aforesaid show cause notice
as also order dated 13.03.2023, learned
counsel for the respondents, appearing on
advance copy, brought to the notice of the
Court that after the proceedings under
Section 74 of the RGST Act, 2017/ the
CGST Act, 2017 were drawn against the
petitioner which culminated in order dated
13.03.2023 resulting in levy of tax liability
along with interest and penalty, the
petitioner did not file any appeal either
8 All. Atlantis Intelligence Ltd. Vs. Union of India & Ors.
289
within
the
period
of
limitation
as
prescribed under Section 107 of the RGST
Act, 2017/ the CGST Act, 2017 or within
the maximum period thereafter which could
be condoned under the power to condone
the delay in filing of the appeal. Therefore,
in view of the decision of the Hon'ble
Supreme Court in the case of Assistant
Commissioner (CT) LTU, Kakinada and
Others v. Glaxo Smith Kline Consumer
Health Care Ltd. reported in (2020) 19
SCC 681(2020) 19 SCC 681, present writ
petition is not maintainable and liable to be
dismissed.

***

6. Present is a case where the
petitioner did not even file appeal and
allowed the order passed in assessment
proceedings to become final and thereafter
approached this Court by filing writ
petition
seeking
to
challenge
the
determination of tax, interest and penalty
by the competent authority vide order dated
13.03.2023. Present is not a case where the
order under Section 74 of the RGST Act,
2017/ the CGST Act, 2017 levying tax
along with interest and penalty was passed
without giving any opportunity of hearing
to the petitioner.