Bombay High Court
Nirmite Buildtech vs Union Of India Throu. The Sec. Ministry ... on 29 July, 2025
Author: M S Sonak
Bench: M.S. Sonak
2025:BHC-AS:32424-DB 15-16-8649-2025+F.DOCX
Amol
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 8649 OF 2025
Nirmite Buildtech
302, Ronak Heights, Raka Colony,
Sharanpur Road, Nashik - 422002 ...Petitioner
Versus
1. Union of India
Through the Secretary,
Ministry of Finance,
Department of Revenue,
North Block, New Delhi - 110001
2. State of Maharashtra
Through Commissioner of State Tax,
8th Floor, GST Bhavan,
Mazgaon, Mumbai - 400010
3. Assistant Commissioner,
CGST & Central Excise,
Nashik-I Division,
GST Bhavan, Sector-P-34,
CIDCO, Nashik - 422008
4. Goods & Services Tax Council
(Through its Special Secretar)
5th Floor, Tower 2, Jeevan Bharati Bldg.,
Cannaught Place, New Delhi 110001 ...Respondents
WITH
Digitally
signed by
AMOL
AMOL
PREMNATH
WRIT PETITION NO. 8650 OF 2025
PREMNATH JADHAV
JADHAV Date:
2025.07.31
Arham Infira Developers AOP
17:57:41
+0530
302, Ronak Heights, Raka Colony,
Sharanpur Road, Nashik - 422002 ...Petitioner
Page 1 of 7
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Versus
1. Union of India
Through the Secretary,
Ministry of Finance,
Department of Revenue,
North Block, New Delhi - 110001
2. State of Maharashtra
Through Commissioner of State Tax,
8th Floor, GST Bhavan,
Mazgaon, Mumbai - 400010
3. Assistant Commissioner,
CGST & Central Excise,
Nashik-I Division,
GST Bhavan, Sector-P-34,
CIDCO, Nashik - 422008
4. Goods & Services Tax Council
(Through its Special Secretar)
5th Floor, Tower 2, Jeevan Bharati Bldg.,
Cannaught Place, New Delhi 110001 ...Respondents
______________________________________________________
Mr Deepak Bapat, with Ms Sonali Bapat, for the Petitioner in
both matters.
Mr Jay Sanklecha, 'B' Panel Counsel, for the Respondent-State
in WP/8649/2025.
Mr Vijay Kantharia, with Adv S D Deshpande for the
Respondent No. 1
Ms Shruti D Vyas, Addl GP, with Mr Aditya Deolekar, AGP, for
the Respondent No. 2-State in WP/8690/2025.
______________________________________________________
CORAM M.S. Sonak &
Jitendra Jain, JJ.
DATED: 29 July 2025
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ORAL JUDGMENT:- (per M S Sonak, J)
1. Heard learned Counsel for the parties.
2. Learned Counsel for the parties state that the issues
involved in both these Petitions are similar.
3. In both these Petitions, the challenge is to the
assessment orders dated 31 January 2025 (incorrectly typed
as 1 January 2025 in the prayer clause) and 27 January 2025.
4. As against the impugned assessment orders, the
Petitioners have the remedy of an Appeal to the Appellate
Authority under Section 107 of the Central Goods and
Services Tax.
5. In paragraph 42 of both the Petitions, the Petitioners
have made a bald statement that they have no efficacious or
alternative remedy available to them save and except by way
of filing the present Petitions. This statement is obviously false
and erroneous; the Petitioners clearly have an alternate and
efficacious remedy by way of a statutory appeal. At least in
these Petitions, there are no pleadings as to why the
Petitioners must be allowed to bypass the normal rule of
exhaustion of alternate remedies.
6. However, Mr Bapat submitted that the issue raised in
these Petitions is settled by the decision of the Hon'ble
Supreme Court in Civil Appeal (D) No. 33259 of 2018, by
which an Appeal against the CESTAT's order was dismissed.
He submitted that even this Court allowed Writ Petition No.
7135 of 2024 in similar circumstances without relegating the
parties to avail of any alternate remedy. He also relied on the
order in Nirmal Lifestyle Developers Pvt Ltd Vs Union of India
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& Ors1, where a Rule was issued and some interim reliefs were
also granted by this Court.
7. Mr Kantharia and Ms Vyas, the learned Counsel for the
Respondents, submit that the decisions relied upon by Mr
Bapat were in the context of the agreements entered into
between the parties inter se, i.e., the developers and the
owners. They submitted an investigation into the facts that
would be necessary for effectively deciding the challenges to
the impugned assessment orders. Accordingly, they submitted
that these Petitions may not be entertained bypassing the
normal rule of exhaustion of alternate remedies.
8. The rival contentions now fall for our determination.
9. Whilst there may be no serious dispute regarding the
proposition that in Joint Development Agreements, there is no
question of any supply that would be exigible to GST, the
matter will have to be investigated in the context of the actual
agreements between the parties. Such an examination would
involve an investigation into factual aspects and the terms of
the agreements between the developer and the owner. The
mere nomenclature or title of the agreement is never
conclusive. This exercise can be best undertaken by the
Appellate Authorities under the Act.
10. In this case, no violation of natural justice is alleged.
These Petitions do not contain any averments explaining why
the Petitioners should be permitted to bypass the usual
requirement of exhausting alternative remedies. Instead, the
Petitioners have made a false statement claiming they have no
effective or alternative remedy available to them.
Writ Petition (L) No. 11011 of 2025 decided on 9 April 2025
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11. In all such matters, it is the duty of the Petitioners to
state in clear terms that a statutory remedy is available and
then proceed to explain why, in the peculiar facts and
circumstances, the Petitioner must be excused from not
exhausting such statutory remedies. Petitions cannot be filed
by making bald statements that the Petitioners have no
alternate or efficacious remedy available to them. This is yet
another reason why both these Petitions do not deserve to be
entertained.
12. In the case of State of Maharashtra Vs Greatship (India)
Ltd2, the Hon'ble Supreme Court has seriously faulted the
High Court for entertaining Writ Petitions when the
Petitioners have alternate and statutory remedies against
assessment orders. The Hon'ble Supreme Court, after referring
to its earlier decisions, held that the High Court had seriously
erred in entertaining the Writ Petitions under Article 226 of
the Constitution of India against the assessment order,
bypassing statutory remedies.
13. Recently, in the case of Bank of Baroda Vs Farooq Ali
Khan3, the Hon'ble Supreme Court, in the context of the
Insolvency and Bankruptcy Code held that the High Court
incorrectly exercised its writ jurisdiction instead of relegating
the parties to the remedies provided under the Code. The
Court explained that while there is no exclusion of the power
of judicial review of the High Courts, the limits and restraints
that the Constitutional Court exercises must be exercised are
well articulated in Whirlpool Corporation Vs Registrar of
(2025) 171 taxmann.com 643
15-16-8649-2025+F.DOCX
Trade Marks4and Harbanslal Sahniya Vs Indian Oil
Corporation Ltd5.
14. The Hon'ble Supreme Court held that the factual
determination of whether the debt exists is part of the
statutory and regulatory regime of the IBC Code. The Court
explained that the entire purpose behind appointing a
Resolution Professional under Section 97 is to assist in this
determination by the Adjudicating Authority. Therefore, the
High Court should not have interfered with the proceedings
under the statute and assumed what it did while exercising
jurisdiction under Article 226 of the Constitution of India.
15. This Court, in the case of Oberoi Constructions Vs Union
Of India & Ors6, has considered several precedents of the
Hon'ble Supreme Court and this Court on the issue of
exhaustion of alternate remedies. By adopting the reasoning,
this decision and the reasoning in precedents referred to
therein, we are satisfied that no case is made out to entertain
the present Petitions.
16. As noted earlier, the decisions cited by Mr Bapat turned
on the peculiar facts where, possibly, there was no dispute. In
any event, in the decisions cited, any objection to the
availability of an alternate and efficacious remedy does not
appear to have been raised. In this case, objection has been
squarely raised and the same deserves to be upheld because
entertaining this Petition would involve an investigation into
questions of fact, the agreements between the parties and the
interpretation of their clauses. In such matters, mere
1998 8 SCC 1
2003 2 SCC 107
(2025) 137 GSTR 601
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nomenclature of the agreement is never sufficient, and it is
the actual terms of the agreement and other factual aspects
that would be relevant. These petitions appear to have been
instituted to take a chance or to avoid a pre-deposit. Neither
of such motives is legitimate and can form the basis for
bypassing the statutory remedies.
17. For all the above reasons, we dismiss these Petitions but
by reserving the Petitioners' liberty to institute Appeals against
the impugned assessment orders.
18. Further, we clarify that if such Appeals are instituted
within four weeks from the date of uploading of this order
after due compliance with all statutory requirements like pre-
deposit, etc, the Appellate Authorities shall hear and dispose
of such Appeals on their own merits and in accordance with
law without adverting to the issue of limitation. This is
because these Petitions may have been filed on legal advice.
All contentions of all parties on the merits of the matter are
expressly left open.
19. Both these Petitions are dismissed with liberty in the
above terms and without any order for costs.
20. All concerned can act on an authenticated copy of this
order.
(Jitendra Jain, J) (M.S. Sonak, J)
