Putul Sarma v. The Union of India and 3 Ors

JUDGEMENT AND ORDER (ORAL) Heard Mr. D. Sahu, the learned counsel appearing on behalf of the petitioner and Mr. S. C. Keyal, the learned Standing Counsel appearing on behalf of the respondents.

¶2The instant writ petition has been filed challenging the Order-in-Original No. 62/Addl. Of Commr./ADJ/ ST/ COMMR/ DIB/2023-24 passed by the Additional Commissioner, Central Goods and Service Tax, Dibrugarh whereby an amount of Rs.97,20,191/- has been confirmed as the payable service tax under Section 73(2) of Finance Act, 1994 for the financial year 2017-18 (01.04.2017 to

30.06.2017). In addition to that the petitioner has also been imposed with interest and penalty as mentioned in the impugned order.

¶3This Court further takes note of that the said order is appealable in terms with Section 107 of the CGST Act, 2017 to the Commissioner (Appeals), Customs, CGST and Central Excise (NER), GST Bhawan that to within 60 days from the date of the said impugned order being communicated.

¶4The case of the petitioner as set out in the instant proceeding is that the Page No.# 3/5 Assessing concerned has made wrong calculations by taking the entire period from 01.04.2017 to 31.03.2018 which could not be have been taken into consideration and as such the petitioner has approached this Court under Article 226 of the Constitution challenging the impugned order.

¶5At this stage, this Court finds it very pertinent to take note of a recent Judgment of the Supreme Court in the case of PHR Invent Educational Society vs UCO Bank and others reported in (2024) 6 SCC 579 wherein the Supreme Court dealt with the aspect as regards exercise of jurisdiction under Article 226 of the Constitution vis a vis availability of alternative remedy. Though a perusal of the said Judgment reveals that the said Judgment was delivered in the case of a proceeding under the Securitization And Reconstruction of Financial Assets And Enforcement of Security Interest Act, 2002, but this Court finds it relevant to take note of the observations of the Supreme Court at paragraph No. 23 of the said Judgment which is reproduced herein under:- "23. It could thus be seen that, this Court has clearly held that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person. It has been held that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. The Court clearly observed that, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mnind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. It has been held that, though the powers of the High Court under Article 226 of the Constitution are of widest amplitude, still the courts cannot be oblivious of the rules of self-imposed restraint Page No.# 4/5 evolved by this Court. The Court further held that though the rule of exhaustion of alternative remedy is a rule of is a rule of discretion and not one of compulsion, still it is difficult to fathom any reason why the High court should entertain a petition filed under Article 226 of the Constitution."

From the above quoted paragraph of the said Judgment, it is seen that the Supreme Court had observed that the High Court ought not to ordinarily entertain a writ petition under Article 226 of the Constitution, if an effective remedy is available to the aggrieved person and such a principle should be applied with great rigor in matters involving recovery of taxes, cess, fees and other types of public money .

¶6This Court also finds it relevant at this stage to take note of another judgment of the Supreme Court in the case of M/S Godrej Sara Lee Ltd. Vs Excise and Taxation Officer cum Assessing Authority and ors, reported in (2023) 109 GSTR 402 wherein the Supreme Court observed that a writ petition can be entertained inspite of availability of alternative remedy when

(i) the writ petition seeks enforcement of any of the fundamental rights (ii) where there is a violation of the principles of natural justice (iii) where an order or the proceedings is wholly without jurisdiction (iv) where the vires of an Act is challenged. In addition to that, it was also observed that when an issue is raised purely on a question of law, the High Court can entertain a writ petition.

¶7In the backdrop of the above, the question which arises is as to whether this Court should entertain the writ petition at all. In the instant case, the exceptional circumstances as stated in the Judgment of the Supreme Court in the case of M/S Godrej Sara Lee Ltd.(supra) is not present in as much as the question which has been raised by the petitioner is on the question of adjudication of facts as in respect to how much amount the concerned Assessing Authority ought to have taken into consideration and which Page No.# 5/5 transaction ought not to have been taken into consideration. These aspects in the opinion of this Court can be very well dealt with by the Statutory Appellate Authority. Under such circumstances, this Court finds no ground to entertain the instant writ petition, taking into account that there is an alternative and efficacious remedy available to the petitioner for which the instant writ petition stands dismissed.

¶8Before parting with the record, this Court however takes note of the fact that the petitioner had approached this Court by filing the instant writ petition on 15.06.2024 and thereupon this Court had issued notice on 17.07.2024 and the writ petition had been pending since then.

¶9Under such circumstances, this Court is of the opinion that the interest of justice would be met, if further 30 (thirty) days time is granted from today to the petitioner to file an Appeal before the Appellate Authority as mentioned in the impugned order dated 27.03.2024 itself. Accordingly, this Court observes and directs that if the petitioner herein files an Appeal within 30 (thirty) days from the date of the instant order, the Commissioner (Appeals) shall decide the appeal on merits without going into the question of limitation.

¶10With the above observations and directions, the instant writ petition stands disposed of.

JUDGE

Comparing Assistant

PageoNo.#o1/5 GAHC010122692024 ooooooo 2024:GAU-AS:9122 ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/3150/2024ooooooooo PUTULoSARMAo SONoOFoLATEoPRASANNAoNARAYANoSARMA,o PROPRIETORoOFoM/S.oPRASANNAoWELDINGoINDUSTRIES,o BORBILoNO.o1,oP.O.-oDIGBOI,o DISTRICT-oTINSUKIA-o786171,oASSAM. VERSUSo THEoUNIONoOFoINDIAoANDo3oORS.o REPoBYoTHEoSECRETARYoTOoTHEoGOVERNMENToOFoINDIA,o MINISTRYoOFoFINANCE,o DEPARTMENToOFoREVENUE,o NEWoDELHI-o110001 2:THEoPRINCIPALoCOMMISSIONER oCENTRALoGOODSoANDoSERVICEoTAX oGSToBHAWAN oKEDARoROAD oMACHKHOWA oGUWAHATI-o781001. 3:THEoADDITIONALoCOMMISSIONER oCENTRALoGOODSoANDoSERVICEoTAX oMILANoNAGAR oLANE-F o P.O.-oC.R.oBUILDING oDIBRUGARH-o786003. 4:THEoSUPERINTENDENTo(A/E) oO/OoTHEoASSISTANToCOMMISSIONER CENTRALoGSToDIVISION oTINSUKIA o Page No.# 2/5 DURGABARI ROAD TINSUKIA- 786125 Advocate for the Petitioner(s) : Mr. D. Sahu Advocate for the Respondent(s) : Mr. S.C. Keyal, SC, GST Date of Hearing : 13.09.2024 Date of Judgment : 13.09.2024 BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH