Shreehari Realtech Pvt. Ltd. Lko. Thru. Its Authorised Signaotory Mr. Kripa Shankar V. Union Of India Thru. Secy. Govt. India Finance Ministry, Deptt. Of Revenue, New Delhi and Another

/152/2024

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The case involves M/S Shreehari Realtech Pvt. Ltd., represented by Mr. Kripa Shankar, challenging certain orders issued by the Union of India through the Ministry of Finance, Department of Revenue. The petitioner argued that the orders were illegal and violated principles of natural justice, primarily because they were not digitally signed and lacked a preliminary notice. The respondents contended that the petition was not maintainable due to the availability of a statutory remedy under the U.P. Goods and Services Tax Act, 2017, specifically an appeal to the Appellate Authority. The court, referencing various Supreme Court decisions, emphasized the principle of exhaustion of statutory remedies before invoking writ jurisdiction under Article 226 of the Constitution, leading to the dismissal of the petition.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 800120 (HC-LUCKNOW)
• Appeal Type: Others
• Pronouncement Date: 07-06-2024
• Assessment Year: misc
• Other Referred Cases: Magadh Sugar & Energy Ltd. Vs. State of Bihar, Whirpool Corporation v. Registrar of Trademarks, Mumbai, Harbanslal Sahni v. Indian Oil Corporation Ltd., Radha Krishan Industries v. State of Himachal Pradesh, PHR Invent Educational Society Vs. UCO Bank and others, Satyawati Tondon, Mohammad Nooh, Commissioner of Income Tax v. Chhabil Dass Agarwal
• Laws Referred To: U.P. Goods and Services Tax Act, 2017, Central Goods and Services Tax Act, 2017, Article 226 of the Constitution of India
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: A S G I C S C; SAURABH MISHRA
• Assessee Lawyers: TUSHAR MITTAL; PARTH ANAND
• Keywords: Digital Signature; Maintainability; Statutory remedy; Violation of Principles of Natural Justice; Preliminary notice; Consultative notice
• Section: 107

Judgement Text

" 6 1. Neutral Citation No. - 2024:AHC-LKO:42686-DB 2. 3. Court No. - 2 Case :- WRIT TAX No. - 152 of 2024 Petitioner :- M/S Shreehari Realtech Pvt. Ltd. Lko. Thru. Its Authorised Signaotory Mr. Kripa Shankar Respondent :- Union Of India Thru. Secy. Govt. India Finance Ministry, Deptt. Of Revenue , New Delhi And Another Counsel for Petitioner :- Tushar Mittal,Parth Anand Counsel for Respondent :- A.S.G.I.,C.S.C. Hon'ble Jaspreet Singh,J. Hon'ble Ram Manohar Narayan Mishra,J. 1. Heard Shri Chinmay Seth, learned counsel for the petitioner, Shri Rajesh Tiwari, learned Additional Chief Standing Counsel, who has put in appearance on behalf of respondent No.2 and Shri Saurabh Mishra, learned counsel for respondent No.1, who has filed his memo of appearance, which is taken on record. 2. At the very outset, learned Additional Chief Standing Counsel has raised a preliminary objection regarding the maintainability of the aforesaid petition on the ground of availability of statutory remedy as provided under Section 107 of the U.P. Goods and Services Tax Act, 2017. It is submitted that in view of the aforesaid statutory remedy, the petitioner can very well avail the remedy of appeal and in the light thereof, the petition is not maintainable. 3. Refuting the aforesaid submissions, learned counsel for the petitioner has vehemently argued that the impugned orders are patently illegal and they suffer from vice of violation of principles of the natural justice. It has further been submitted that since there is a violation of the principles of natural justice, hence, petition would be maintainable and in order to 6 buttress his submissions, he has submitted that the orders, which are under challenge, have not been digitally signed by the authorities, which renders them bad in the eyes of law. 4. It has further been submitted that prior to the said orders, the authorities were required to issue a preliminary/consultative notice, which has also not been issued and in such circumstances, where this mandatory procedure has not been adhered, hence, its violation renders the orders bad. 5. It has also been urged that the petitioner was not aware of the aforesaid orders as it were loaded on a new portal of which the petitioner was not aware and unless and until all the compliances are made including sending a copy through mail apart from electronic-mail, the order cannot be said to have any validity and for the said reasons, the impugned orders are bad and in the light of the discretionary power available with this Court, the petition under Article 226 of the Constitution of India is very much maintainable. 6. Having considered the aforesaid submissions and also considering Section 107 of the U.P. Goods and Services Tax Act, 2017, which reads as under:- \"107. Appeals to Appellate Authority (1) Any person aggrieved by any decision or order passed under this Act or the Central Goods and Services Tax Act, 2017 (12 of 2017) by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person.\" 7. It would indicate that there is a clear stipulation that any person aggrieved by any decision or order passed under the Act or the Central Goods and Services Tax Act by an adjudicating authority can be challenged in an appeal. 6 8. Shri Seth, learned counsel for the petitioner could not dispute the fact that the remedy of the appeal is available in law and though he has ably argued that despite the availability of alternative remedy, but where the orders are passed, which are patently illegal, the Court has the discretion to entertain the petition. 9. This Court is reminded of the decision of the Apex Court in Magadh Sugar & Energy Ltd. Vs. State of Bihar, 2021 SCC Online SC 801 and the relevant portion thereof read as under:- “25. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai19 and Harbanslal Sahni v. Indian Oil Corporation Ltd.20. Recently, in Radha Krishan Industries v. State of Himachal Pradesh21 a two judge Bench of this Court of which one of us was a part of (Justice DY Chandrachud) has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court has observed: “28. The principles of law which emerge are that: (i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well; (ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person; (iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged; (iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law; (v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and (vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.” (emphasis supplied) 6 10. Similarly the Apex Court recently in PHR Invent Educational Society Vs. UCO Bank and others; 2024 SCC Online 528 after noticing its earlier decision has observed as under:- “14. The law with regard to entertaining a petition under Article 226 of the Constitution in case of availability of alternative remedy is well settled. In the case of Satyawati Tondon (supra), this Court observed thus: “43. Unfortunately, the High Court overlooked the settled law 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 and 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. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind 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. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. 45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance.” 15. 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 mind 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 6 oblivious of the rules of self-imposed restraint evolved by this Court. The Court further held that though the rule of exhaustion of alternative remedy 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.” XXX------XXX-----XXX------XXX-----XXX------XXX “22. It can thus be seen that it is more than a settled legal position of law that in such matters, the High Court should not entertain a petition under Article 226 of the Constitution particularly when an alternative statutory remedy is available.” XXX------XXX-----XXX------XXX-----XXX------XXX “28. Insofar as the contention of the Borrower and its reliance on the judgment of this Court in the case of Mohammad Nooh (supra) is concerned, no doubt that non-exercise of jurisdiction under Article 226 of the Constitution on the ground of availability of an alternative remedy is a rule of self-restraint. There cannot be any doubt with that proposition. In this respect, it will be relevant to refer to the following observations of this Court in the case of Commissioner of Income Tax v. Chhabil Dass Agarwal “15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case [AIR 1964 SC 1419], Titaghur Paper Mills case [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 : 1983 SCC (Tax) 131] and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.” 29. It could thus clearly be seen that the Court has carved out certain exceptions when a petition under Article 226 of the Constitution could be entertained in spite of availability of an alternative remedy. Some of them are thus: (i) where the statutory authority has not acted in accordance with the provisions of the enactment in question; (ii) it has acted in defiance of the fundamental principles of judicial procedure (iii) it has resorted to invoke the provisions which are repealed; and (iv) when an order has been passed in total violation of the principles of natural justice. 30. It has however been clarified that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance. 11. Taking note of the aforesaid as well as fact that the petitioner does not dispute that it has the right to assail the orders in appeal, this Court in 6 exercise of its discretionary jurisdiction does not deem it appropriate to entertain the petition which is accordingly dismissed leaving it open for the petitioner to assail the impugned orders in terms of the appeal as provided in the statute. In case, if the petitioner files the appeal before the appellate authority within a period of three weeks from today then the same shall be considered on its own merits and the issue of limitation if involved shall be considered sympathetically by the appellate authority. 12. It is made clear that Court has not examined the case of the petitioner on merits and the petition has been dismissed solely on the ground of availability of the statutory remedy. Order Date :- 07th June, 2024 Ashutosh (Ram Manohar Narayan Mishra, J.) (Jaspreet Singh, J.) Digitally signed by :- ASHUTOSH PANDEY High Court of Judicature at Allahabad, Lucknow Bench "