petition be filed against
|
Case Title |
Mahendra Sponge & Power Limited vs Assistant Commissioner State Tax. |
|
Court |
Chhattisgarh High Court |
|
Honorable Judges |
Justice Parth Prateem Sahu |
|
Citation |
2022 (5) GSTPanacea 343 HC Chhattisgarh WPT No.67 of 2022 |
|
Judgement Date |
04-May-2022 |
|
Council for Petitioner |
Bhishma Ahluwalia |
|
Council for Respondent |
Sandeep Dubey Ruchi Nagar |
|
Section |
Section 107 of the Act |
|
In Favour of |
In Favour of Assesses |
The Chhattisgarh High Court bench of Justice Parth Prateem Sahu has held that the existence of an alternate remedy is not an absolute bar but the discretionary jurisdiction under Article 226 of the Constitution can be exercised only in exceptional circumstances. Court is of the opinion that no exceptional circumstances as mentioned above are available for entertaining this writ petition. For the foregoing reasons, writ petition being devoid of any substance which is liable to be and is hereby dismissed accordingly
FACTS OF THE CASE
Petitioner by this writ petition has challenged the impugned order dated 02.02.2022 passed by appropriate authority under Section 73(9) of Chhattisgarh Goods and Services Tax Act, 2017, making demand under the “DRC-07”
the petitioner is engaged in the business of manufacturer of iron and steel goods, avails the facilities of ITC under the CGST/ SGST laws. Petitioner is continuously depositing its output tax liabilities making payment through its cash ledger and credit ledger as mentioned under Section 49 of the CGST Act.
Respondent issued notice under Section 61 r/w Rule 99(1) in Form GST ASMT-10 dated11.08.2021 mentioning that during scrutiny some discrepancies were noticed and excess credit of ITC of Rs. 27,54,730/- was availed by the petitioner during the period from 01.04.2019 to 31.03.2020.
Respondent has failed to provide details of excess claim of ITC. On 11.10.2021, Respondent issued DRC-01 making proposal of payment of Rs. 85,15,273/- for the aforesaid period without specifying any allegations or details of excess ITC availed.
Thereafter, respondent issued Show Cause Notice under Section 73 of the CGST/ SGST without giving details. Petitioner made an application pointing out that the notice was not proper and detailed show-cause notice be issued to petitioner.
Petitioner, thereafter, filed petition bearing WPT No 221/2021. Upon hearing, notices were issued to respondent/ Department and they deliberately not submitted their reply to the writ petition and passed impugned order. Writ petition is still pending.
The Respondent-department without giving proper opportunity of hearing, passed the impugned order and the result of illegal adjudication will follow the illegal recoveries and may also lead to attachment of bank accounts and debiting electronic credit ledger of the petitioner. Referring to the provisions under Section 49, 37 read with Rule 59; Section 38 read with Rule 60 and Section 42 of CGST/ SGST Act, he submits that the mechanism provided under the aforementioned provisions of verifying credits are for the purpose of converting the same from provisional to final was never put in place by the Government. GSTR-2 and GSTR-3 have been kept suspended during the entire period after implementation of the new regime by the Government.
The DRC-01 dated 11.10.2021 is not a show-cause notice as it does not contain all allegations and WPT 67/2022 -3- charges based upon which demand of tax is proposed. No charges have been framed against the petitioner.
The notice under Section 73 issued only reflects the provisions of the Section and it does not mention any charges against the petitioner. The order dated 02.02.2022 is in violation of principles of natural justice. Reasonable and proper opportunity of hearing is not provided to put-forth its objection.
petition be filed against
COURT HELD
Considering the facts as recorded, held that respondent issued notice under Section 61 of GST Act, calling explanation upon the discrepancies found by the authority to which the petitioner did not reply, thereafter, show-cause notice under Section 73 of CGST/SGST along with the summary of show-cause notice dated 11.10.2021 was also issued.
the existence of an alternate remedy is not an absolute bar but the discretionary jurisdiction under Article 226 of the Constitution can be exercised only in exceptional circumstances like:
- a breach of fundamental rights;
- a violation of principles of natural justice;
- an excess of jurisdiction; or
- a challenge to the vires of the statute or delegated legislation.
Court is of the opinion that no exceptional circumstances as mentioned above are available for entertaining this writ petition.
For the foregoing reasons, writ petition being devoid of any substance which is liable to be and is hereby dismissed accordingly. However, petitioner will be at liberty to take recourse to the appropriate remedy available to it under Section 107 of the GST Act, 2017 for redressal of its grievance
petition be filed against
ANALYSIS OF THE JUDGEMENT
The order impugned is passed by adjudicating authority, hence, the order is to be assailed before the appellate authority under Section 107 of GST Act, 2017.
Petitioner is having statutory alternate remedy of challenging the impugned order. The petitioner instead of availing the statutory remedy available to it of filing appeal under Section 107 of GST Act, 2017 has filed this writ petition.
The grounds raised in this writ petition, very well be considered by the appellate authority and as held by Hon’ble Supreme Court in the aforementioned rulings ie. M/s Commercial Steel Limited (supra) the existence of an alternate remedy is not an absolute bar but the discretionary jurisdiction under Article 226 of the Constitution can be exercised only in exceptional circumstances
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