2021 (1) TMI 892 - HC - GST

Maintainability of petition - alternative remedy of appeal - Direction to the Respondents to grant refund - petitioner submits that though there is a remedy for filing further appeal under the CGST Act, however, since the Goods and Services Tax Appellate Tribunal is presently not constituted, he has no other option but to approach this Court - HELD THAT - It is noticed that the prayer sought in the present petition does not seek any relief in respect of the order passed by the first Appellate Authority and in absence of any such challenge, we are unable to understand as to how the present petition would be maintainable. At this stage, learned counsel for the Petitioner states that though he has urged grounds to challenge the order passed by the first Appellate Authority, however, since there is no specific relief sought to set aside the afore-noted order, he would like to amend the present petition by adding an appropriate relief in that regard. He requests for an adjournment to do the needful. At his request, re-notify on 9th March, 2021.

Summary

Issues:
1. Refund of &8377; 10,79,676 sought by the Petitioner.
2. Maintainability of the present petition due to lack of challenge against the order passed by the first Appellate Authority.

Issue 1: Refund of &8377; 10,79,676 sought by the Petitioner:
The Petitioner filed a writ petition seeking a direction to the Respondents to grant a refund of &8377; 10,79,676. It was noted that the Petitioner had utilized statutory remedies under the CGST Act and had appealed before the first Appellate Authority under Section 107 of the CGST Act, 2017. However, the appeal was decided against the Petitioner. The Petitioner highlighted the unavailability of the Goods and Services Tax Appellate Tribunal (GSTAT) and expressed the need to approach the High Court due to this limitation. The Court observed that the prayer in the petition did not challenge the order passed by the first Appellate Authority, raising concerns about the maintainability of the petition without a specific challenge against the said order.

Issue 2: Maintainability of the present petition:
The Court noted that the Petitioner's counsel acknowledged the need to challenge the order passed by the first Appellate Authority but admitted that the petition lacked a specific relief seeking to set aside the said order. Consequently, the counsel requested an adjournment to amend the petition by adding an appropriate relief challenging the order. The Court, in response to the counsel's request, scheduled a re-notification for 9th March, 2021, allowing the Petitioner to amend the petition to address the deficiency and ensure the maintainability of the petition before the Court.

In conclusion, the judgment addressed the issues of the refund sought by the Petitioner and the maintainability of the petition due to the absence of a challenge against the order passed by the first Appellate Authority. The Court highlighted the importance of specific relief sought in the petition and granted an opportunity to the Petitioner to amend the petition to rectify the deficiency and ensure the proper maintainability of the case before the Court.