2024 (5) TMI 1425 - HC - GST

Maintainability of petition - availability of efficacious alternative remedy of appeal - Validity of pre show cause notice issued u/s 74 of the WBGST Act, 2017 and SCN - SCN were not uploaded in the view notices and orders section of the portal and uploaded in the additional notices and orders section. Validity of pre show cause notice issued u/s 74 of the WBGST Act, 2017 and SCN - SCN were not uploaded in the view notices and orders section of the portal and uploaded in the additional notices and orders section - HELD THAT - It is noticed that although, the petitioner claims that the notices in question including the final order passed under Section 74 of the said Act had been uploaded in additional notices and orders section instead of view notices and orders section, no statement has been made by the petitioner as to when the petitioner came to learn with regard to the factum of uploading of the notices/order. In view of the aforesaid and by reason of failure on the part of the petitioner to make appropriate disclosure as to when he had come to learn with regard to factum of uploading of aforesaid notices, it is not inclined to exercise discretion in favour of the petitioner. Maintainability of petition - availability of efficacious alternative remedy of appeal - HELD THAT - Taking note of the fact that the petitioner has an efficacious alternative remedy in, the form of appeal, the petitioner should be permitted to approach the appellate authority under Section 107 of the said Act. However, at the same time since, it is not in dispute that the notices in question including the order passed under Section 74 of the said Act had been uploaded in additional notices and orders section instead of view notices and orders section and without going into the controversy at this stage as to whether uploading of the notice in the additional notices and orders section constitutes due service of notice within the meaning of Section 169 (1)(d)of the said Act, the petitioner should be permitted to approach the appellate authority. Petition disposed off.

Summary

Issues involved: Challenge to pre show cause notice, show cause notice, and order under Section 74 of the WBGST Act, 2017 due to incorrect uploading on the portal.

Summary:

Challenge to Incorrect Uploading of Notices:
The petitioner challenged the pre show cause notice, show cause notice, and order under Section 74 of the WBGST Act, 2017, as they were uploaded in the "additional notices and orders" section instead of the "view notices and orders" section of the portal. The petitioner argued that this incorrect uploading prevented them from responding, leading to the ex parte order dated 16th June, 2023. Citing a judgment from the High Court of Judicature at Madras, the petitioner contended that the notices should have been published in the "view notices and orders" section. The petitioner sought to set aside the proceedings and remand the matter for adjudication from the stage of the pre show cause notice.

Opposition by State Respondents:
The State respondents opposed the petitioner's prayer, stating that the petitioner had an alternative remedy through an appeal under Section 107 of the WBGST Act, 2017. They argued that the notices were duly published in a common portal accessible to the petitioner, and there was no disclosure in the petition regarding when the petitioner became aware of the notices. Relying on Section 169(1)(d) of the Act, the State respondents contended that the petitioner could not claim ignorance of the notices.

Court Decision and Directions:
The Court noted the lack of disclosure by the petitioner regarding when they learned of the uploading of the notices. Due to this failure, the Court declined to exercise discretion in favor of the petitioner. However, recognizing the availability of an alternative remedy through an appeal, the Court permitted the petitioner to approach the appellate authority under Section 107 of the Act. The Court directed the petitioner to file an appeal within six weeks, along with an application for condonation of delay. The appellate authority was instructed to consider the application for condonation of delay and dispose of the appeal on merits, subject to compliance with pre-deposit provisions. The Court also referred to specific judgments for guidance on condonation of delay. The writ petition was disposed of without costs, with parties instructed to act based on the server copy of the order downloaded from the Court's official website.