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2021 (1) TMI 101 - HC - GSTMaintainability of petition - availability of alternative remedy - Delegation of powers by the commissioner - Provisional attachment - Proceedings initiated u/s 83 - petitioner admits that there is alternate remedy available, but contend that the rule of exclusion of jurisdiction due to availability of alternative remedy is a rule of discretion and not one of the compulsions - HELD THAT - It is not in dispute that respondent No.3 and the Divisional Commissioner, who has been appointed as Commissioner (Appeals) under the GST Act, are constituted under the Act and therefore, it is assumed that there is no illegal or irregular exercise of jurisdiction and the same would not result in the order being without jurisdiction. Even if there is some defect in the procedure followed during the hearing of the case, it does not follow that the authority acted without jurisdiction. It may make the order irregular or defective but the order cannot be a nullity so long it has been passed by the authority, which is competent to pass the order. There is a basic difference in between want of jurisdiction or irregular exercise of jurisdiction and if there is non-compliance of procedure, the same cannot be a ground for granting one of the writs prayed for. The defect, if any, can according to the procedure established by law, be corrected only by a court of appeal or revision. The Hon ble Supreme Court has in one of its latest judgments in ASSISTANT COMMISSIONER (CT) LTU, KAKINADA ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED 2020 (5) TMI 149 - SUPREME COURT held that even though the High Court can entertain writ petition against any order or direction passed or action taken by State under Article 226 of the Constitution of India, but it has not to do so as a matter of course when aggrieved person could have availed the effective alternative remedy in the manner prescribed by law. Thus, what can be deduced from the aforesaid exposition of law is that the Hon ble Supreme Court has recognized some exception to the rule of alternative remedy, i.e. where the statutory authority has not acted in accordance with the provisions of the Act or in defiance the fundamental principles of judicial procedure or has resorted to invoke the provisions, which are repealed or where an order has been passed in total violation of the principle of natural justice, but the High Court will not entertain a petition under Article 226 of the Constitution of India, if efficacious remedy is available to the aggrieved person or where the statute under which the action complained of has been taken in mechanism for redressal of grievance still holds the field. Meaning thereby, that when a statutory form is created by law for redressal of grievance, a writ petition should not be entertained ignoring the statutory dispensation. Thus, the writ petitioner has not only efficacious remedy, rather alternative remedy under the GST Act, and therefore, the present petition is not maintainable. Lastly and importantly, we find that the writ petition filed by M/S GM POWERTECH AND OTHERS VERSUS STATE OF H.P. OTHERS 2020 (12) TMI 482 - HIMACHAL PRADESH HIGH COURT , the company against whom same and similar allegations, as have been levelled against the petitioner herein, being CWP No. 5462 of 2020, has not been entertained and the company has been relegated to avail of the alternative remedy. The present petition is dismissed.
Issues Involved:
1. Quashing of the impugned order dated 21.10.2020. 2. Quashing of the proceedings initiated under Section 83. 3. Direction to revoke the provisional attachment and prevent further coercive measures. Issue-wise Detailed Analysis: 1. Quashing of the Impugned Order Dated 21.10.2020: The petitioner sought a writ under Article 226 of the Constitution of India to quash the impugned order dated 21.10.2020, alleging it to be illegal, arbitrary, misconceived, erroneous, and violative of principles of natural justice, equity, and fair play. The court noted that the impugned order was passed by a competent authority under the GST Act, and any defect in the procedure would not render the order null but merely irregular or defective. The court emphasized that such defects could only be corrected through an appeal or revision as per the law. 2. Quashing of the Proceedings Initiated Under Section 83: The petitioner also sought to quash the proceedings initiated under Section 83 of the GST Act, which involved the provisional attachment of amounts receivable from its customers. The court acknowledged the availability of an alternative remedy under Section 107 of the GST Act, which the petitioner did not dispute. The court reiterated that the rule of exclusion of jurisdiction due to the availability of an alternative remedy is a rule of discretion and not compulsion. However, it emphasized that the writ court should exercise its discretion judiciously, especially when statutory remedies are available. 3. Direction to Revoke the Provisional Attachment and Prevent Further Coercive Measures: The petitioner sought a mandamus directing the respondent to revoke the provisional attachment and refrain from further coercive measures. The court relied on precedents, including judgments from the Supreme Court, which consistently held that when an effective and efficacious alternative remedy is available, the High Court should not entertain a writ petition. The court cited various cases, including "Union of India vs. Guwahati Carbon Limited" and "Commissioner of Income Tax vs. Chhabil Dass Agarwal," emphasizing that the High Court should not bypass statutory remedies provided by the law. Conclusion: The court concluded that the petitioner had an efficacious alternative remedy under the GST Act and dismissed the writ petition. It highlighted that the petitioner could file an appeal before the prescribed authority, and the period spent in prosecuting the writ petition would be excluded while computing the period of limitation. The court's decision was consistent with previous judgments, reinforcing the principle that statutory remedies should be exhausted before invoking the writ jurisdiction of the High Court.
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