2022 (7) TMI 1231 - HC - GST

Maintainability of petition - availability of alternative remedy of appeal - allegation is that ITC availed by the petitioner on the basis the fake and sham supply of goods from M/s Star Metal and other firms through the fake invoices issued by the firms - HELD THAT - Since the disputed question of fact is involved, therefore, the petitioner is delegated to avail remedy of Appeal under Section 107 of the Act. The writ petition is dismissed on the ground of alternative remedy, leaving it open for the petitioner to file appeal before the appellate authority.

Summary

Issues:
Challenge to order under Section 73 of CGST/UPGST Act for Assessment Year 2017-18 and 2019-2020; Invocation of alternative remedy under Section 107 for filing first appeal.

Analysis:
The writ petition sought to quash the order dated 15.07.2021 passed by the respondent under Section 73 of CGST/UPGST Act for the Assessment Years 2017-18 and 2019-2020. The respondents, in their counter affidavit, contended that the input tax credit availed by the petitioner based on alleged fake and sham supply of goods was invalid and unjust under Section 16 of the GST Act. They highlighted discrepancies in tax deposition and physical movement of goods, leading to the order under Section 73 of the U.P. GST Act. The respondents also raised the issue of non-invocation of alternative remedy, stating that the petitioner should have filed a first appeal under Section 107 instead of directly approaching the court.

The petitioner disputed the allegations made by the respondents and argued that the matter involved disputed questions of fact. The court, considering the involvement of factual disputes, directed the petitioner to avail the remedy of appeal under Section 107 of the Act. The court dismissed the writ petition on the ground of non-invocation of the alternative remedy, emphasizing the importance of following the proper course of action by filing a first appeal before the appellate authority. However, the court provided an opportunity for the petitioner to file an appeal within three weeks, ensuring that the appellate authority would entertain the appeal without raising objections regarding limitation, if filed within the specified timeframe.

In conclusion, the High Court dismissed the writ petition on the basis of non-invocation of the alternative remedy under Section 107 for filing a first appeal. The court allowed the petitioner the opportunity to pursue the proper course of action by filing an appeal within three weeks, ensuring that the appeal would be entertained by the appellate authority without objections regarding limitation.