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2024 (10) TMI 781 - HC - GSTMaintainability of petiiton - appealable order or not - petitioner was not given any opportunity to go through the statement, file his revised reply and advance effective arguments - violation of principles of natural justice - HELD THAT - The Hon ble Supreme Court in its judgment dated 10.04.2024 in the case of PHR Invent Educational Society Vs. UCO Bank and Others 2024 (4) TMI 466 - SUPREME COURT (LB) disapproved the order of Telangana High Court in 2022 (2) TMI 1476 - TELANGANA HIGH COURT , wherein a Division Bench of this Court entertained a Writ Petition despite availability of alternative remedy. The Hon ble Supreme Court opined that merely because a petition is maintainable, it is not necessary to entertain a petition. It is the discretion of the Court to entertain a petition and not a compulsion. Thus, it is clear that maintainability and entertainability are two different facets. Merely, because petition is maintainable , it creates no compulsion on the Writ Court to entertain it. If the petitioner has not raised any objection of limitation/jurisdiction before the Authority, he may raise all possible objections in his appeal memo before the Appellate Authority. The petitioner is unable to show if he is relegated to avail the remedy of appeal, it will cause any palpable injustice to him. Thus, in view of judgment of Supreme Court in R.S. Pandey 2005 (9) TMI 634 - SUPREME COURT and also in its recent judgment in PHR Invent Educational Society 2024 (4) TMI 466 - SUPREME COURT (LB) , it is not required to entertain this petition. The petitioner has an efficacious statutory remedy of appeal. The petitioner may avail the said remedy. The time consumed before this Court shall not be counted by the learned Appellate Authority for the purpose of counting limitation in preferring appeal. It is made clear that the respondents shall entertain the appeal, if the same is filed physically by the petitioner. This Writ Petition is disposed of.
Issues:
Challenge to Order-in-Original dated 22.05.2024 against a Chartered Accountant. Violation of principles of natural justice in passing the order. Maintainability of the petition despite the availability of an alternative remedy. Interpretation of the legal position on maintainability and entertainability of a petition. Analysis: The judgment involves a challenge to an Order-in-Original dated 22.05.2024 against a Chartered Accountant. The petitioner argued that the order was passed in violation of principles of natural justice as he was not given the opportunity to review a statement provided by the Department before the personal hearing. The petitioner contended that despite the availability of an appeal under Section 107 of the Central Goods and Services Tax Act, 2017, the petition was maintainable due to the breach of natural justice principles. The petitioner's counsel highlighted the importance of maintaining the petition despite alternative remedies in certain circumstances, such as the breach of natural justice. The judgment referred to the case law of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and U.P. State Spinning Co. Ltd. v. R.S. Pandey and Another to emphasize the discretion of the Court in entertaining petitions when there is a palpable injustice or a root jurisdiction issue involved. The judgment also cited a recent decision of the Supreme Court in PHR Invent Educational Society Vs. UCO Bank and Others, which disapproved the Telangana High Court's order in a similar matter. The Supreme Court highlighted that the High Court should not entertain petitions under Article 226 of the Constitution if an effective remedy is available, especially in cases involving recovery of public dues or taxes. The Court emphasized the importance of exhausting alternative remedies before approaching the High Court. Based on the legal position established by the Supreme Court decisions, the High Court declined to entertain the petition despite its maintainability. The Court clarified that maintainability and entertainability are distinct, and the availability of an appeal remedy should be exhausted before seeking relief through a writ petition. The petitioner was directed to pursue the statutory remedy of appeal, ensuring that the time spent in the Writ Court would not count towards the limitation period for filing the appeal. In conclusion, the Writ Petition was disposed of without costs, emphasizing the importance of exhausting statutory remedies before seeking relief through writ petitions. The judgment clarified the distinction between maintainability and entertainability, highlighting the need to follow the legal procedures and remedies established by law.
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