2022 (3) TMI 975 - HC - GST

Maintainability of petition - availability of alternative remedy of filing a Second Appeal - HELD THAT - When the petitioner has an alternative efficacious statutory remedy available it would not be proper for this Court to exercise any power under Article 226 of the Constitution of India. The petitioner must invoke their alternative remedy - Application disposed off.

Summary

Issues:
Challenge to Ext.P3 order of the 2nd respondent Appellate Authority based on delay in receiving the order and failure to consider grounds for challenge. Maintainability of the writ petition due to the availability of an alternative remedy of Second Appeal. Contention regarding the Appellate Authority's failure to follow due procedure in disposing of the Appeal.

Analysis:
The petitioner approached the Court challenging Ext.P3 order of the 2nd respondent Appellate Authority, citing delay in receiving the order and alleging that the grounds for challenge were not considered. The petitioner sought to set aside Ext.P3 and have the Appellate Authority reconsider Ext.P2. The Senior Government Pleader argued that the writ petition was not maintainable as the petitioner had the remedy of filing a Second Appeal against Ext.P3, emphasizing that the challenge involved both legal and factual aspects. The petitioner, while acknowledging the availability of the Second Appeal remedy, argued that approaching the Court was justified due to the Appellate Authority's failure to follow due procedure in disposing of the Appeal.

The Court noted that the petitioner's attempt was to challenge Ext.P3 on its merits, emphasizing that an alternative statutory remedy was available to the petitioner. Considering the availability of an efficacious remedy, the Court deemed it inappropriate to exercise power under Article 226 of the Constitution of India. The Court directed the petitioner to invoke their alternative remedy and granted liberty to file necessary applications for condonation of delay, if required, before the 2nd respondent - Appellate Authority. Additionally, the Court ordered that all recovery based on Ext.P1 assessment be deferred for one month from the date of receipt of the judgment to enable the petitioner to pursue the Second Appellate remedy without immediate consequences.

In conclusion, the Court dismissed the writ petition, emphasizing the importance of invoking the alternative remedy available to the petitioner. The Court's decision was based on the principle that when a statutory remedy exists, it should be utilized before seeking relief through extraordinary constitutional powers, maintaining the proper legal process and hierarchy of remedies.