2022 (5) TMI 291 - HC - GST

Maintainability of petition - availability of efficacious alternate remedy of appeal - Section 107 of GST Act, 2017 - HELD THAT - Undisputedly, upon scrutiny, notice under Section 61, notice in FORM GST ASMT-10 was issued to the petitioner on 11.08.2021 followed by show-cause notice under Section 73 of CGST/ SGST Act and the respondent authority by impugned order had determined the tax liabilities, interest and penalty upon the petitioner under Section 73(9) of CGST/ SGST Act and made demand of the amount mentioned therein. Section 107 of the GST Act, 2017 provides for appeal to appellate authority against the order of adjudicating authority. The order impugned is passed by adjudicating authority, hence, the order is to be assailed before the appellate authority under Section 107 of GST Act, 2017. Petitioner is having statutory alternate remedy of challenging the impugned order. The petitioner instead of availing the statutory remedy available to it of filing appeal under Section 107 of GST Act, 2017 has filed this writ petition. In the case at hand, respondent issued notice under Section 61 of GST Act, calling explanation upon the discrepancies found by the authority to which the petitioner did not reply, thereafter, show-cause notice under Section 73 of CGST/SGST along with the summary of show-cause notice dated 11.10.2021 was also issued - In the facts of the case, this Court is of the opinion that no exceptional circumstances as mentioned above are available for entertaining this writ petition. The writ petition being devoid of any substance which is liable to be and is hereby dismissed.

Summary

Issues:
Challenge to impugned order under Section 73(9) of Chhattisgarh Goods and Services Tax Act, 2017.

Analysis:
The petitioner, engaged in manufacturing iron and steel goods, challenged the order demanding payment under "DRC-07" for allegedly availing excess Input Tax Credit (ITC) without proper details provided by the respondent. The petitioner argued that the notice and subsequent show-cause notice lacked specific allegations and charges, violating principles of natural justice. The petitioner emphasized the absence of a mechanism to convert provisional credits to final under relevant provisions and suspended GSTR-2 and GSTR-3 forms. The petitioner cited legal cases to support their contentions regarding the inadequacy of the notices issued.

The respondent contended that the writ petition was not maintainable due to the availability of an alternate remedy through an appeal under Section 107 of the GST Act, 2017. The respondent highlighted the issuance of notices specifying discrepancies in ITC, the petitioner's failure to respond adequately, and the subsequent show-cause notice detailing the tax differences. The respondent argued that the petitioner should have pursued the statutory remedy of filing an appeal instead of opting for a writ petition challenging the final order.

The court acknowledged the notices issued under Section 61 and Section 73 of the CGST/SGST Act, leading to the impugned order determining tax liabilities, interest, and penalties. The court emphasized the availability of the statutory remedy of appeal under Section 107 of the GST Act, 2017 to challenge the adjudicating authority's order. While recognizing exceptions where writ jurisdiction can be invoked, such as fundamental rights breach or natural justice violation, the court found no exceptional circumstances in the present case to entertain the writ petition.

Ultimately, the court dismissed the writ petition for lacking substance and directed the petitioner to pursue the appropriate remedy under Section 107 of the GST Act, 2017. The court's decision was based on the petitioner's failure to establish exceptional circumstances warranting the exercise of discretionary jurisdiction under Article 226 of the Constitution.