Telangana High Court
M/S. Santhosh Traders vs The Commissioner on 18 July, 2024
THE HONOURABLE SRI JUSTICE SUJOY PAUL
AND
THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
WRIT PETITION No.18663 of 2024
ORDER (per Hon'ble SP,J)
Sri Srinivas Ganishetti, learned counsel appears for the
petitioner and Sri Dominic Fernandes, learned Senior Standing
Counsel for CBIC, appears for the respondents.
2. Learned counsel for the petitioner submits that the
Order-in-Original (OIO) dated 03.04.2024 is subject matter of
challenge in this petition. No doubt, there exists statutory
remedy of appeal under the Central Goods and Services Tax Act,
2017, but this petition may be entertained despite availability of
alternative remedy. The writ petition is always maintainable.
Reliance is placed on recent judgment of the Apex Court in M/s
Godrej Sara Lee Ltd. Vs. The Excise and Taxation Officer-
cum-Assessing Authority & Others 1.
3. Learned Senior Standing Counsel for CBIC, for the
respondents, urged that there exists an alternative remedy and
this is spelled out in impugned OIO dated 03.04.2024 itself.
4. We have heard learned counsel for the parties at length.
2023(2) TMI 64 - SC
5. In our considered opinion, the impugned OIO, at best,
can be said to be an erroneous order. No amount of argument is
advanced to show that it suffers from any patent lack of
jurisdiction. It is trite that despite availability of statutory
alternative remedy, interference under Article 226 of the
Constitution can be made in certain circumstances. However,
this is discretion of the Court and not a compulsion.
6. In M/s Godrej Sara Lee Ltd. (supra), the reason for
entertaining a petition was point was confined to interpretation
of law and there were no disputed questions of fact. The Apex
Court recently passed a detailed order against the judgment of
this Court in PHR Invent Educational Society Vs. UCO Bank
and Others 2 disapproving the action of entertaining the writ
petition despite availability of alternative remedy. The relevant
portion reads as under:
"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
(2024) 4 S.C.R. 541
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 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."
(Emphasis Supplied)
7. In this view of the matter, since the petitioner has a
statutory efficacious alternative remedy, we are not inclined to
entertain this petition because the petitioner has not shown any
of those ingredients on which interference can be made by
bypassing the statutory remedy. Petitioner has not shown that
the impugned OIO suffers from jurisdictional error or
constitutionality of any provision etc., is under challenge. Mere
violation of principles of natural justice etc., cannot always be a
reason for interference in a writ petition. Interestingly, in
Whirlpool Corporation v. Registrar of Trade Marks, Mumbai 3,
the Apex Court considered and opined that violation of principles
of natural justice can be a ground to entertain a writ petition
despite availability of alternative remedy. However, this
judgment of Whirlpool Corporation (supra), was considered by
the Apex Court in U.P. State Spinning Co. Ltd. v. R.S. Pandey
and Another 4 and it was opined as under:-
3 (1998) 8 SCC 1
(2005) 8 SCC 264
"17. ...But normally, the High Court should not
entertain writ petitions unless it is shown that there
is something more in a case, something going to the
root of the jurisdiction of the officer, something which
would show that it would be a case of palpable injustice to
the writ petitioner to force him to adopt the remedies
provided by the statute...."
(Emphasis Supplied)
8. The petitioner is unable to show any such flaw which
can form basis for interference in the impugned OIO by this
Court. It also could not be established as to what palpable
injustice would be caused to the petitioner if he is relegated to
avail alternative remedy.
9. Thus, interference is declined. Liberty is reserved to the
petitioner to avail alternative appellate remedy.
10. Accordingly, this writ petition is disposed of. No costs.
Interlocutory applications, if any pending, shall also
stand closed.
_____________
Sujoy Paul, J
_______________________________
Namavarapu Rajeshwar Rao, J
Date: 18.07.2024
Myk/Tsr
