2021 (8) TMI 966 - HC - GST

Maintainability of petition - availability of alternative remedy of appeal - error apparent on the face of record or not - HELD THAT - In Section 161 of the Act, it has been made clear that without prejudice to the provisions of Section 160 and notwithstanding anything contained in any other provisions of this Act, any authority, who has passed or issued any decision or order or notice or certificate or any other document, may rectify any error which is apparent on the face of record in such decision or order or notice or certificate or any other document, either on its own motion or where such error is brought to its notice by any officer appointed under this Act or an officer appointed under the State Goods and Services Tax Act, etc. In both way, the petitioner has got alternative appeal remedy or remedy of review to rectify the error under Section 161 of the Act as stated supra. While that being so, in view of the settled legal position, where except under two exceptions for want of jurisdiction and violation of principles of natural justice, writ petitions are not entertained without exhausting the appeal remedy, especially, in respect of revenue matters (tax matters), the hierarchy of forums by way of appeals as has been provided, the assessee / petitioner is expected to exhaust the said appeal remedy and without exhausting the same, no writ petition can be entertained, straightaway without the two circumstances available. This Court is inclined to dispose of this writ petition, by relegating the petitioner to approach the appellate authority or the adjudicating authority as the case may be, as indicated above, within a particular period and if such endeavour is made by the petitioner, within the time to be stipulated in this regard, the same may be entertained by the appellate authority and decided - Petition disposed off.

Summary

Issues:
- Jurisdiction of the High Court to entertain a Writ of Certiorari against an order-in-original dated 03.06.2020 under the Central Goods and Services Tax Act, 2017.
- Availability of alternative remedies like appeal and review under Sections 107 and 161 of the Act.
- Legal position regarding the necessity of exhausting appeal remedies before filing a writ petition in revenue matters.

Analysis:

The petitioner sought a Writ of Certiorari from the High Court, challenging the order-in-original dated 03.06.2020 issued by the respondent under the Central Goods and Services Tax Act, 2017. The petitioner contended that the order was without jurisdiction and violated specific sections of the Act. The respondent argued that the petitioner had the option to appeal the order under Section 107 of the Act and rectify any errors under Section 161. The respondent emphasized that the petitioner's claim lacked legal basis and was an undue burden on the Department.

The respondent relied on previous judicial decisions to support the argument that writ jurisdiction should be exercised only in exceptional cases like lack of jurisdiction or violation of natural justice principles. The High Court examined Sections 107 and 161 of the Act, highlighting the availability of alternative remedies through appeal and review to rectify errors in the order-in-original. The court emphasized the importance of exhausting appeal remedies before resorting to writ petitions, especially in revenue matters, unless specific exceptions like lack of jurisdiction or violation of principles of natural justice exist.

In light of the legal position and the availability of alternative remedies, the High Court disposed of the writ petition by directing the petitioner to approach the appellate authority or the original adjudicating authority within a specified period. The court instructed that if the petitioner pursued the appeal or review process within the stipulated time, the concerned authority should entertain and decide the matter promptly, preferably within three months. The court concluded the judgment without imposing any costs, closing the connected miscellaneous petition.