Bondalapati Srinivasa Rao vs The Joint Commissioner
2024 Latest Caselaw 3711 Tel

Citation : 2024 Latest Caselaw 3711 Tel
Judgement Date : 9 September, 2024

Telangana High Court

Bondalapati Srinivasa Rao vs The Joint Commissioner on 9 September, 2024

            THE HONOURABLE SRI JUSTICE SUJOY PAUL

                                     AND

 THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

                WRIT PETITION No.24722 of 2024

ORDER (per Hon'ble SP,J)

Heard Sri P. Girish Kumar, learned Senior Counsel

representing Sri P. Kamalakar, learned counsel for the petitioner,

Sri Dominic Fernandes, learned Senior Standing Counsel for CBIC, for

respondent Nos.1 and 2 and Sri B. Mukherjee, learned counsel

representing Sri Gadi Praveen Kumar, learned Deputy Solicitor

General of India, for respondent No.3.

2. The challenge is mounted to the Order-in-Original dated

22.05.2024 whereby an adverse order is passed against the petitioner,

a Chartered Accountant.

3. Learned Senior Counsel for the petitioner, at the outset, fairly

submits that although, the impugned order is appealable under

Section 107 of the Central Goods and Services Tax Act, 2017, the

petition is maintainable because the impugned order is passed in

utter violation of principles of natural justice. To bolster this, it is

argued that when the petitioner was served with the show cause

notice, in his reply, he requested to provide him his statement

recorded previously by the Department. The said

document/statement was provided to the petitioner only on the date

of personal hearing. The petitioner was not given any opportunity to

go through the said statement, file his revised reply and advance

effective arguments.

4. On a specific query from the Bench, learned Senior Counsel

for the petitioner could not point out any pleading from the writ

petition to show that the said statement was provided to the petitioner

only on the date of hearing. The another ground of attack is violation

of principles of natural justice and the issuance of notice beyond the

period of limitation. The reply to show cause notice submitted by the

petitioner, nowhere shows that he had taken any such objection

regarding the bar of limitation.

5. Learned Senior Counsel for the petitioner is right in

submitting that despite availability of alternative remedy, petition can

be entertained in certain circumstances, including the circumstance

of breach of principles of natural justice.

6. The curtains on the aforesaid aspect were drawn by the

Hon'ble Supreme Court in Whirlpool Corporation v. Registrar of

Trade Marks, Mumbai 1. The said judgment was again considered by

the Hon'ble Supreme Court in U.P. State Spinning Co. Ltd. v. R.S.

Pandey and Another 2 and it was opined as under:-

"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)

1 (1998) 8 SCC 1

(2005) 8 SCC 264

7. Recently, the Hon'ble Supreme Court in its judgment dated

10.04.2024 in the case of PHR Invent Educational Society Vs. UCO

Bank and Others 3 disapproved the order of Telangana High Court in

W.P.No.5275 of 2021, dated 04.02.2022, wherein a Division Bench of

this Court entertained a Writ Petition despite availability of alternative

remedy. The Hon'ble Supreme Court opined that merely because a

petition is maintainable, it is not necessary to entertain a petition. It

is the discretion of the Court to entertain a petition and not a

compulsion. The relevant paragraph 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 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)

8. In view of aforesaid legal position, it is clear that

"maintainability" and "entertainability" are two different facets.

Merely, because petition is "maintainable", it creates no compulsion

on the Writ Court to "entertain" it. If the petitioner has not raised any

(2024) 4 S.C.R. 541

objection of limitation/jurisdiction before the Authority, he may raise

all possible objections in his appeal memo before the Appellate

Authority. The petitioner is unable to show if he is relegated to avail

the remedy of appeal, it will cause any palpable injustice to him.

9. Thus, in view of judgment of Supreme Court in R.S. Pandey

(supra) and also in its recent judgment in PHR Invent Educational