High Court of Himachal Pradesh

Radha Krishan Industries vs. State of H.P. and others

MANU/HP/0001/2021

01.01.2021

Goods and Services Tax

When a statutory form is created by law for redressal of grievance, a writ petition cannot be entertained ignoring the statutory dispensation

The instant petition has been filed for the issuance of a writ in the nature of mandamus under Article 226 of the Constitution of India, 1950 directing the Respondent No.3 to revoke the provisional attachment and not to resort to further coercive measures against the Petitioner.

A detection case under Section 74 of the Himachal Pradesh Goods and Services Tax Act, 2017 (GST Act’) and the Central Goods and Services Tax Act, 2017 read with Section 20 of the Integrated Goods and Services Tax Act, 2017 was conducted against one of the suppliers of Radha Krishan Industries, by way of search and seizure as provided under section 67 of the HPGST/CGST Acts. A show cause notice was issued to Fujikawa Power, regarding provisional attachment of payment of the Petitioner under Section 83 of the Act. After initial inquiry into the matter, evidences of tax evasion were detected and GM Powertech, Kala-Amb claimed and utilized input tax credit on account of the invoices issued by the fake/fictitious firms without actual movement of goods from the fake firms. Similarly, GM Powertech also issued invoices on the same analogy to various recipients situated in the state of Himachal Pradesh including the Petitioner. Consequently, Respondents issued provisional attachment of the payment receivable by the Petitioner.

It is not in dispute that, Respondent No.3 and the Divisional Commissioner, who has been appointed as Commissioner (Appeals) under the GST Act, are constituted under the Act and therefore, it is assumed that there is no illegal or irregular exercise of jurisdiction and the same would not result in the order being without jurisdiction. Even if there is some defect in the procedure followed during the hearing of the case, it does not follow that the authority acted without jurisdiction. It may make the order irregular or defective but the order cannot be a nullity so long it has been passed by the authority, which is competent to pass the order.

There is a basic difference in between want of jurisdiction or irregular exercise of jurisdiction and if there is non-compliance of procedure, the same cannot be a ground for granting one of the writs prayed for. The defect, if any, can according to the procedure established by law, be corrected only by a Court of appeal or revision.

When a statutory form is created by law for redressal of grievance, a writ petition should not be entertained ignoring the statutory dispensation. The writ petitioner has not only efficacious remedy, rather alternative remedy under the GST Act, and therefore, the present petition is not maintainable. The writ petition filed by GM Powertech, the Company against whom same and similar allegations, as have been levelled against the Petitioner herein, has not been entertained and the company has been relegated to avail of the alternative remedy vide judgment. Accordingly the present petition is dismissed.

Tags : Writ petition Maintainability Alternative remedy

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