2022 (9) TMI 989 - HC - GST

Violation of principles of natural justice - exemption from service tax - transportation services - objection raised by the petitioner supported by any document, or not - HELD THAT - In limited circumstances wherein forum of appeal is provided with a un-extendable limitation, petition under Article 226 of the Constitution of India can be entertained, after the expire of limitation, and the order impugned can be quashed. However, the learned counsel for the petitioner failed to satisfy the Court that the order passed by the Assistant Commissioner, GST was without jurisdiction or that he acted in flagrant disregard to law or rules of procedure or acted in violation of principles of natural justice - There is no violation of any principle of natural justice or any rules or procedure in this case. So, the order passed by the Assistant Commissioner cannot be interfered with in a application filed under Article 226 of the Constitution of India. Additionally, this Court takes note of the fact that the petitioner in essence is praying for exercise of writ jurisdiction for issuance of a certiorari. Certiorari jurisdiction are not exercise for quashing mere error of fact of law unless there is substantial question of law arises regarding the jurisdiction etc. of the Tribunal and that if that order is allowed to stand a gross injustice would allow to be perpetuated. It is not the case here. There is no gross injustice in this case. There is no violation of rules or procedure and principle of natural justice. Petition dismissed.

Summary

Issues:
1. Challenge to the order passed by respondent no. 2 regarding Goods and Service Tax assessment.
2. Jurisdiction of the Assistant Commissioner in passing the order.
3. Validity of the petitioner's claim for exemption from service tax.
4. Applicability of writ jurisdiction under Article 226 of the Constitution of India.

Analysis:
1. The petitioner challenged the order passed by respondent no. 2, seeking a writ to quash the order. The petitioner claimed exemption from service tax as he was using his contractor license for transportation services only. The Assistant Commissioner imposed a penalty against the petitioner, prompting the writ petition. The petitioner failed to appeal to the Commissioner (Appeal) within the specified time and directly filed the writ petition challenging the Assistant Commissioner's order.

2. The petitioner argued that the writ petition was maintainable based on precedents from the Gujarat High Court. The Court considered the Full Bench judgment of the Gujarat High Court and outlined the circumstances under which a petition under Article 226 can be preferred. These include instances where the authority acts without jurisdiction, in flagrant disregard of law, or results in gross injustice. However, the Court found that the Assistant Commissioner did not act without jurisdiction or violate principles of natural justice in this case.

3. The Court noted that the petitioner failed to demonstrate any jurisdictional errors or violations of natural justice by the Assistant Commissioner. The order was passed after providing the petitioner with a reasonable opportunity to be heard. The Court emphasized that certiorari jurisdiction is not exercised for mere errors of fact or law unless a substantial question of law regarding the tribunal's jurisdiction is raised, leading to gross injustice. In this case, no such gross injustice or violation of rules and principles was found.

4. Ultimately, the Court dismissed the writ petition as lacking merit, stating that the petitioner did not establish grounds for challenging the Assistant Commissioner's order under Article 226 of the Constitution of India. The Court found no substantial question of law or violation of natural justice to warrant interference with the order. No costs were awarded in the matter.