2024 (5) TMI 1214 - HC - GST

Maintainability of petition - availability of alternative remedy - Violation of principle of natural justice - physical service of order not done - time limitation - HELD THAT - On perusal of the records, it appears that the impugned order was passed on 07.12.2021 under Section 74 of the OGST Act, 2017 by the adjudicatory authority, which has been challenged before this Court in the present case only on 18.04.2024. Thus, the order having been passed on 07.12.2021, the present writ petition has been filed after the period of limitation prescribed under the Act. It is also not in dispute that against the order impugned the petitioner has not exhausted the alternative remedy by way of filing appeal, as available under the statute. As such, the present writ petition, having been filed without availing the alternative remedy, cannot be entertained. In Assistant Commissioner (CT) LTU, Kakinada 2020 (5) TMI 149 - SUPREME COURT , the apex Court held ' the fact that the High Court has wide powers, does not mean that it would issue a writ which may be inconsistent with the legislative intent regarding the dispensation explicitly prescribed under Section 31 of the 2005 Act. That would render the legislative scheme and intention behind the stated provision otiose.' Relying on the aforesaid decision of the apex Court, the High Court of Judicature for Rajasthan in Malik Khan 2023 (5) TMI 883 - RAJASTHAN HIGH COURT dismissed the writ petition which was filed after eight months of expiry of limitation. In the present case, even though the petitioner has not been communicated with the order physically, but since the same was made available on the common portal, it is deemed to have been served on him. Therefore, such plea is of no use for the petitioner. This Court is of the considered view that since the petitioner has not filed any statutory appeal before the appellate authority within the limitation period and has directly filed this writ petition before this Court after two years and five months of passing of the impugned order, the writ petition filed by the petitioner cannot be entertained as being not maintainable. Petition dismissed.

Summary

Issues:
1. Challenge to order passed under Section 74 of the Odisha Goods and Services Tax Act, 2017.
2. Allegation of incorrect filing of returns by the petitioner.
3. Availability of alternative remedy through appeal.
4. Validity of the writ petition filed after the limitation period.
5. Service of order through the common portal.

Analysis:

The petitioner filed a writ petition seeking to quash an order passed under Section 74 of the Odisha Goods and Services Tax Act, 2017, demanding payment of Rs. 1,25,240.00 for alleged discrepancies in filing returns. The petitioner contended that the order was passed without verifying the returns and violated the principle of natural justice. The petitioner explained the filing discrepancy due to the timing of payment receipt and subsequent return filing. The respondent argued that the writ petition was not maintainable as the petitioner did not exhaust the statutory remedy of filing an appeal. The court noted that the writ petition was filed after the limitation period and without availing the alternative remedy of appeal, making it not entertainable.

The court referred to the decision in Assistant Commissioner (CT) LTU, Kakinada, emphasizing the importance of adhering to statutory limitations and exhausting alternative remedies before seeking judicial intervention. The court highlighted the principle that the High Court cannot entertain a writ petition filed after the statutory limitation period for appeal has expired. Additionally, the court clarified that service of the order through the common portal, as per Section 169 (1) (d) of the OGST Act, 2017, is deemed sufficient notification to the petitioner. Relying on these principles, the court dismissed the writ petition as not maintainable due to the petitioner's failure to follow the prescribed legal procedures.

In conclusion, the court found that the petitioner's failure to file a statutory appeal within the limitation period and the delayed filing of the writ petition rendered it not maintainable. The court dismissed the writ petition, emphasizing the importance of adhering to statutory timelines and exhausting available remedies before seeking judicial intervention.