2022 (6) TMI 765 - HC - GST

Maintainability of petition - availability of alternative remedy of appeal - Jurisdiction of DRI - HELD THAT - The respondents raised point of maintainability of the writ petition on the ground of availability of alternative remedy by way of an appellate forum but the same is not sustainable for the reason that it is a well settled principle that alternative remedy is not always a bar and particularly when the question of jurisdiction is involved in the writ petition and the writ court is very much empowered to entertain the writ petition, if an order or action of an officer is without jurisdiction or there is a violation of principle of natural justice or constitutional validity of a provision of law is involved and prima facie the petitioner has been able to make out a case that the issue involved in this case is the jurisdiction of the officer concerned who has exercised the power of a GST Officer and since interpretation of several provisions of law and notifications are involved, this writ petition cannot be thrown out at the motion stage on the ground of availability of alternative remedy and this writ petition has to be heard and decided on merit. Prima facie the petitioner has been able to make out a case for an interim order and considering this aspect there will be conditional stay of the impugned adjudication order dated 3rd March, 2022 and subject to deposit of 10% of the demand in question, by the petitioner, within ten days from date and if such payment is made by the petitioner within the time stipulated herein, no coercive action shall be taken against the petitioner for recovery of the demand in question. Petition disposed off.

Summary

Issues: Jurisdiction under State GST Act, Maintainability of writ petition, Alternative remedy available

Jurisdiction under State GST Act:
The petitioner challenged an order passed by the Deputy Commissioner of Revenue, Directorate of Revenue Intelligence and Enforcement under Section 74(9) of the State GST Act, claiming it was without jurisdiction. The respondent defended the jurisdiction citing Sections 4 and 5 of the State GST Act and relevant notifications. The petitioner relied on a specific notification dated 12th February, 2019. The court noted that the issue involved the jurisdiction of the officer acting under the State GST Act, and since interpretation of various legal provisions and notifications was necessary, the writ petition could not be dismissed solely on the availability of an alternative remedy. The court found that the petitioner had made a prima facie case regarding the jurisdiction of the officer concerned.

Maintainability of writ petition:
The respondent raised the issue of maintainability of the writ petition, arguing that an alternative remedy through an appellate forum was available. However, the court held that the availability of an alternative remedy did not bar the writ court from entertaining the petition, especially when the question of jurisdiction was at stake, or there was a violation of natural justice or constitutional validity of a legal provision. The court emphasized that the writ petition had to be heard and decided on its merits, particularly when the issue of jurisdiction was in question.

Conditional Stay and Interim Order:
The court granted a conditional stay of the impugned order dated 3rd March, 2022, subject to the petitioner depositing 10% of the demand within ten days. If the payment was made within the stipulated time, no coercive action would be taken against the petitioner for recovery of the demand. The court scheduled the matter for final hearing after ten weeks, allowing the respondents to file an affidavit-in-opposition within four weeks and the petitioner to file a reply within two weeks thereafter. The court found that the petitioner had established a case for an interim order based on the circumstances presented.