Writ petition dismissed as petitioner had remedy of appeal under GST Act but didn’t avail it; court allows liberty to file appeal.

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Case Name:

Harish Sharma Vs. State Of U.P. Thru. Secy. Tax & Registration Lucknow & Ors. (High Court of Allahabad)

Misc. Bench No. 1489 of 2019

Date: 2nd January 2020

Key Takeaways:

- The court cannot entertain a writ petition involving questions of fact when the petitioner has a statutory remedy of appeal available but not availed.

- The court dismissed the writ petition but granted liberty to the petitioner to file an appeal under Section 107 of the Uttar Pradesh Goods and Services Tax Act, 2017, along with an application for condonation of delay.

- The Appellate Authority was directed to decide the appeal on merits expeditiously if filed.

Issue:

Whether the court can entertain a writ petition challenging an order under the Uttar Pradesh Goods and Services Tax Act, 2017, when the petitioner has a statutory remedy of appeal available but not availed.

Facts:

The petitioner filed a writ petition challenging an order dated 07.01.2019 passed under Section 130 of the Uttar Pradesh Goods and Services Tax Act, 2017. This order was separate from a detention order dated 01.12.2018. The petitioner had the remedy of appeal under Section 107 of the same Act but did not avail it before filing the writ petition. The court noted that questions of fact were involved in the writ petition, which could not be addressed while exercising jurisdiction under Article 226 of the Constitution of India.

Arguments:

The petitioner’s arguments are not explicitly stated in the judgment. However, it can be inferred that the petitioner sought to challenge the order dated 07.01.2019 through the writ petition.

Key Legal Precedents:

The judgment does not cite any specific legal precedents. However, it refers to the principle that the court cannot entertain a writ petition involving questions of fact when the petitioner has a statutory remedy of appeal available but not availed.

Judgement:

The court dismissed the writ petition, holding that the petitioner had the remedy of appeal under Section 107 of the Uttar Pradesh Goods and Services Tax Act, 2017, but without availing it, the writ petition had been filed. The court noted that questions of fact were involved in the writ petition, which could not be addressed while exercising jurisdiction under Article 226 of the Constitution of India.

However, the court granted liberty to the petitioner to avail the remedy of appeal provided under Section 107 of the Act. The petitioner was allowed to make an application for condonation of delay, as he was bonafidely pursuing the writ petition. If an appeal along with an application for condonation of delay is filed, the Appellate Authority was directed to decide it on merits and expeditiously.

FAQs:

Q1. What was the main issue in this case?

A1. The main issue was whether the court could entertain a writ petition challenging an order under the Uttar Pradesh Goods and Services Tax Act, 2017, when the petitioner had a statutory remedy of appeal available but did not avail it.

Q2. Why did the court dismiss the writ petition?

A2. The court dismissed the writ petition because the petitioner had the remedy of appeal under Section 107 of the Uttar Pradesh Goods and Services Tax Act, 2017, but without availing it, the writ petition had been filed. Additionally, the writ petition involved questions of fact, which could not be addressed by the court while exercising jurisdiction under Article 226 of the Constitution of India.

Q3. What liberty was granted to the petitioner by the court?

A3. The court granted liberty to the petitioner to avail the remedy of appeal provided under Section 107 of the Uttar Pradesh Goods and Services Tax Act, 2017. The petitioner was allowed to make an application for condonation of delay, as he was bonafidely pursuing the writ petition.

Q4. What direction was given to the Appellate Authority?

A4. If an appeal along with an application for condonation of delay is filed by the petitioner, the Appellate Authority was directed to decide it on merits and expeditiously.

Q5. What legal principle was applied by the court in dismissing the writ petition?

A5. The court applied the principle that it cannot entertain a writ petition involving questions of fact when the petitioner has a statutory remedy of appeal available but not availed.

This writ petition has been filed to challenge the order dated 07.01.2019 passed under Section 130 of the Uttar Pradesh Goods and Services Tax Act, 2017 (hereinafter referred to as, the Act of 2017). It is apart from the detention order dated 01.12.2018.

The petitioner is having remedy of appeal under Section 107 of the Act of 2017 but without availing it, this writ petition has been filed. It is more so when questions of facts are involved which cannot be addressed by this Court while exercising jurisdiction under Article 226 of the Constitution of India.

In view of the above, the writ petition is dismissed, however with a liberty to the petitioner to avail the remedy of appeal provided under Section 107 of the Act of 2017. The petitioner would make an application for condonation of delay, as he was bonafidely pursuing this petition. In case, an appeal along with an application for condonation of delay is filed, the Appellate

Authority is directed to decide it on merit and that too expeditiously.

Order Date :- 2.1.2020

Ashish