2022 (10) TMI 44 - HC - GST

Maintainability of petition - availability of alternative remedy - Jurisdiction - whether authority does not have jurisdiction to issue the show cause notice? - HELD THAT - The issue relating to the jurisdiction of the authority can very well be raised before the appellate authority and it is the mixed question of fact and law, which can be canvassed by the appellants before the appellate authority. Therefore, we are of the view that the learned Single Bench rightly refused to entertain the writ petition on the ground of availability of alternative remedy, which, in our view, is not only efficacious but also effective as well. In the light of the above, while dismissing the appeal and affirming the order passed by the learned Writ Court, the appellants are directed to file the appeal before the concerned appellate authority in physical form within a period of five weeks from the date of receipt of the server copy of this judgment and order and raise all contentions before the appellate authority - appellants are granted liberty to move before the appellate authority by way of an interlocutory application to lift the lien created on the appellants bank account by the original authority. Appeal disposed off.

Issues:
1. Jurisdiction of the authority challenged in the writ petition.
2. Dismissal of the writ petition on the ground of availability of alternative remedy.
3. Recovery of funds during the pendency of proceedings.
4. Direction to file an appeal before the concerned appellate authority.
5. Stay on further recovery pending the appeal process.

Analysis:

1. The appeal stemmed from a previous writ petition challenging a show cause notice and subsequent demand raised by the authority. The Court had earlier directed the appellants to submit a comprehensive reply and granted an opportunity for a personal hearing. The current appeal arose from the order passed by the Assistant Commissioner of State Tax following the appellants' additional explanation, which was challenged in the writ petition.

2. The learned Advocate for the appellants contended that the proceedings were void ab initio and lacked jurisdiction. The Court held that the issue of jurisdiction could be raised before the appellate authority as it involves a mixed question of fact and law. Consequently, the Single Bench's decision to dismiss the writ petition based on the availability of an alternative remedy was deemed appropriate and effective.

3. During the proceedings, a significant sum of Rs.29 lakhs was recovered from the appellants' bank account, covering both the period of the present writ petition and a connected matter for a subsequent period. This issue was highlighted by the appellants' counsel during the hearing.

4. The Court directed the appellants to file an appeal before the concerned appellate authority within five weeks from the date of the judgment, emphasizing the need to raise all contentions before the appellate authority for a comprehensive review of the case.

5. To ensure fairness, the Court ordered a stay on further recovery from the appellants and considered the recovered amount of Rs.29 lakhs as part of the mandatory pre-deposit required for filing the appeal. The appeal process was to include a hearing for the appellants or their representative.

6. Additionally, the appellants were granted the liberty to file an interlocutory application before the appellate authority to lift the lien on their bank account created by the original authority. The judgment specified that the benefits granted would not apply if the appeal was not filed within the stipulated timeframe.

7. The Court concluded by stating that there would be no order as to costs and directed the prompt provision of a certified copy of the order to the concerned parties upon completion of legal formalities.

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