M/S Jalandhar Steel vs The State Of Jharkhand
2022 Latest Caselaw 295 Jhar

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(T) No. 2986 of 2021
     M/s Jalandhar Steel, Bokaro through its proprietor Gopal Vishwakarma
     R/o Chas, Bokaro
                                                                --- --- Petitioner
                                     Versus
     1. The State of Jharkhand
     2. The Secretary, Commercial Taxes Department, Jharkhand
     3. The Commissioner of Commercial Taxes, Commercial Taxes Dept., Ranchi
     4. Special Secretary, Commercial Taxes Dept., Jharkhand, Ranchi
     5. Deputy Commissioner of State Taxes, Bokaro Circle, Bokaro
     6. Assistant Commissioner of State Taxes, Bokaro Circle, Bokaro
     7. State Tax Officer, Bokaro Circle, Bokaro                --- --- Respondents

                               .......

CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MR. JUSTICE DEEPAK ROSHAN

Through Video Conferencing

For the Petitioners : M/s Amrita Sinha, Aditya Mohan Khandelwal, Advocates For the Respondents : Mr. Salona Mittal, A.C. to Mr. Ashok Kumar Yadav, G.A.-I

03/07.02.2022 Heard learned counsel for the parties.

2. This writ petition has been preferred with the following prayer:

a) For issuance of an appropriate writ or writs in the nature of Certiorari for quashing and setting aside the show Cause Notice issued under reference no. 131 dated 31.07.2020 (Annexure-5) u/s 73 (1) and Rule 142(1) of the GST Act, wherein the respondent no. 7, at the stage of show cause notice itself, has already pre-judged and pre-decided the entire issue and has even passed order fasting liability towards tax, interest and penalty upon the Petitioner.

b) For issuance of an appropriate writ or writs in the nature of Certiorari for quashing and setting aside the ex-parte order passed by the Assistant Commissioner of State Taxes, Bokaro Circle, Bokaro (Respondent No.6) being Reference Number 259 dated 28.09.2020 u/s 73(9) of the Jharkhand GST Act (Annexure-10), hereinafter referred to as, 'GST Act' and consequential demand notice being DRC- 07 dated 28.09.2020(Annexure-11); whereby and whereunder the respondent no. 6 has been pleased to direct the petitioner to reverse the amount of Input Tax Credit availed by it and accordingly raised demand of tax along with interest and penalty total amounting to Rs.65,158.10 against the petitioner.

c) For any other appropriate writ(s) Order(s) direction(s) as Your Lordship may deem fit and proper under the facts and circumstances of this case.

3. Learned counsel for the petitioner has pressed the challenge on the ground that the impugned order dated 28.09.2020 (Annexure-10) has been passed without proper application of mind and does not contain any reasons for rejection of the reply/ explanation given by the petitioner as to the rightful availment of Input Tax Credit by them supported by documents such a invoices, GST returns including the fact of existence of registration in favour of the supplier M/s Maa Kali Steel till it was cancelled on 27.06.2019. Therefore the writ petition is maintainable and the impugned order deserves to be quashed and the matter needs to be remanded to the Assessing Authority to consider the explanation of the petitioner with proper application of mind.

4. Respondents have filed counter affidavit. Learned counsel for the respondent has contended that the I.T.C availed by the petitioner against the receipt of goods from a non-existent dealer has been disallowed in view of specific provisions of Section 16(2)(c) of JGST Act, 2017. It is submitted that the Assessing Authority has by a reasoned order after proper application of mind rejected the explanation furnished by the petitioner and disallowed the I.T.C availed by it for the period in question. Apart from that, learned counsel for the respondent has taken a categorical plea of availability of alternative remedy of appeal under Section 107 of the JGST Act, 2017. Learned counsel for the respondent has relied upon recent judgment of the Apex Court in the case of Assistant Commissioner of State Tax and others Vrs. Commercial Steel Limited reported in 2021 SCC OnLine SC 884 in support of the proposition that in such matters the assessee is required to avail the alternative remedy of appeal. The exceptional circumstances in which the writ petition may be maintainable under Article 226 of the

Constitution of India is enumerated under para 11 of the judgment namely (i) a breach of fundamental rights;(ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation. He therefore submits that the writ petition is not maintainable.

5. Learned counsel for the petitioner then seeks permission to withdraw this petition with a liberty to avail the alternative remedy of appeal.

6. In view of the request made by learned counsel for the petitioner, the writ petition is dismissed as withdrawn. Let it be made clear that we have not entered into the merits of the contentions of the parties. It is open for the petitioner to avail the alternative remedy of appeal as permissible in law.

(Aparesh Kumar Singh, J.)

(Deepak Roshan, J.) A.Mohanty