Writ Petition Against Demand Order Not Maintainable Due to Availability of Statutory Appeal.
Issue: Whether a writ petition challenging a demand order passed under Section 74(9) of the CGST/Chhattisgarh GST Act, which was allegedly passed without affording a personal hearing despite a request for it and without proper consideration of the reply to the show cause notice, is maintainable when an alternate remedy of appeal under Section 107 is available.
Facts: The petitioner challenged an order passed by the Assistant Commissioner State Tax, Circle-4, Raipur, under Section 74(9) of the CGST/Chhattisgarh GST Act. This order imposed a demand of Rs. 2.48 lakhs, payable within 90 days. The petitioner submitted that a reply to the summary of the show cause notice was uploaded on the GST portal, and the option for a personal hearing was specifically “tick marked.” However, the impugned order was passed without granting the petitioner a personal hearing and, allegedly, without properly considering the reply.
Decision:In favor of the revenue: The court held that, admittedly, the impugned order was appealable under Section 107 of the CGST Act, which requires a pre-deposit of 10 percent of the disputed tax. The court noted that the grounds agitated before the High Court (i.e., lack of personal hearing and non-consideration of reply) could very well be agitated by the petitioner before the Appellate Authority, which has the power to decide the same in accordance with law. Therefore, the High Court could not entertain the instant writ petition.
Key Takeaways:
- Exhaustion of Alternate Remedy: A fundamental principle of writ jurisdiction is that the High Court generally does not entertain a writ petition if an efficacious alternate statutory remedy is available to the petitioner.
- Appeal as Efficacious Remedy: In GST matters, the appeal mechanism under Section 107 is considered an efficacious remedy to challenge assessment orders, including those passed ex-parte or without a proper hearing. The Appellate Authority has the power to examine procedural irregularities, factual disputes, and legal interpretations.
- Pre-deposit Requirement: While the requirement of a pre-deposit (10% of the disputed tax under Section 107) might seem onerous, it is a statutory condition for exercising the right to appeal and generally does not render the appeal remedy inefficacious enough to bypass it through a writ.
- Scope of Appellate Authority: The Appellate Authority is competent to address grievances related to the denial of a personal hearing and the non-consideration of replies, ensuring that principles of natural justice are upheld.
- Limited Circumstances for Writ Jurisdiction: A writ petition might be entertained in GST matters despite an alternate remedy only in very exceptional circumstances, such as:
- Where the order is passed without jurisdiction.
- Where there is a patent violation of natural justice, and the alternate remedy is not equally efficacious (e.g., if the authority passing the order completely lacks the power to do so).
- Where the vires of a statutory provision or rule is challenged.
- Where there is an ex facie jurisdictional error or the order is entirely perverse. In this specific case, the procedural lapse (denial of hearing) could be adequately addressed by the Appellate Authority.
HIGH COURT OF CHHATTISGARH
Anand Sales Enterprises
v.
Assistant Commissioner State Goods and Services Tax
Sachin Singh Rajput, J.
W.P. (T) No. 68 of 2025
APRIL 30, 2025
Palash Soni and Ravi Kar Patel, Advs. for the Petitioner. Ms. Anuradha Jain, P.L. for the Respondent.
ORDER
1. This writ petition has been filed by the petitioner seeking for the following relief :
| a. | That, this Hon’ble Court may kindly be pleased to allow the present writ petition. |
| b. | That, this Hon’ble court may kindly be pleased to issue writ/Order/ Direction to respondents thereby holding the impugned Orders passed by Respondent no. 1 and 2 in Annexure-P/1 as issued to the petitioner as without authority of law & bad in law and/or in violation of fundamental rights and/or in violation of principles of natural justice and quash/ set aside the same. |
| c. | That, this Hon’ble court may kindly be pleased to issue writ/ Order/Direction to call for records of the case. |
| d. | That, to issue order/s, direction/s, writ/s or any other relief/s as this Hon’ble Court deems fit and proper considering the facts and circumstances of the present case and in the interest of justice. |
2. Learned Counsel for the petitioner submits that challenge in this Writ Petition is to an order dated 29/01/2025 (Annexure P/1) passed by the Assistant Commissioner State Tax, Circle -4, Raipur, exercising power under section 74(9) of the Chhattisgarh Goods and Service Tax, Act, 2017 (for short, ‘the Act of 2017’) by which a demand of Rs. 02,48,454/- was made against the petitioner to be deposited within a period of 90 days. He further submits that a summary of show cause notice dated 05/08/2024 (Annexure P/2) was issued against the petitioner which was duly replied by him on 09/10/2024 (Annexure P/3). The reply was uploaded on the website and in the option column, personal hearing was tick marked. He further submits that according to section 75 (4) of the Act of 2017 if the assesses selects the option for personal hearing while answering the summary of show cause notice, it would be incumbent upon the respondent/authorities to hear the petitioner in person. In the case in hand, the impugned order was passed without giving any opportunity of personal hearing to the petitioner and also by not considering the reply in its proper perspective, rather an ex-parte order was passed. Therefore, he prays that petition may may be allowed.
3. Learned counsel for the respondent opposing the submission of the counsel for the petitioner and raises a preliminary objection with regard to maintainability of the writ petition itself. She further submits that the impugned order is appealable under the provision of 107 of the Act of 2017 before Appellate Authority and in this case Joint Commissioner/State. Therefore, she further submits that in order to entertain the appeal, the respondent is required to deposit 10% of tax demanded. However, the petitioner has filed this writ petition to avoid the payment of statutory deposit. Provision of under section 107(4) of the Chhattisgarh Goods and Service Tax, Act, 2017 provides for filing the appeal within a period of 03 months or 06 months, as the case may be, but it can be further extendable for a further period of one month, and therefore, this writ petition may not be entertained and the petitioner may be relegated to avail the alternative remedy.
4. In rejoinder, Shri Soni, Advocate submits the alternative remedy is available to the petitioner, but the same may not exclude the jurisdiction of this Court to entertain the writ petition in the given facts and circumstances of the case. In the case in hand, there is violation of Section 75(4) of Act of 2017, therefore this Court may entertain this writ petition as has been done in other writ petitions by the Coordinate Benches.
5. Heard learned counsel for the parties and perused the appended documents.
6. Of Course, there is no bar for entertaining the writ petition despite availability of the alternative remedy. However, it is for this Court to entertain or not to entertain the same looking to the facts and circumstances of the case. Admittedly, in the case in hand, the impugned order is appealable under section 107 of the Chhattisgarh Goods and Service Tax, Act, 2017 which requires pre-deposit of 10%. The ground which has been agitated before this Court can very well be agitated by the petitioner before the Appellate Authority which may decide the same in accordance with law. Therefore, at this stage this Court is not inclined to entertain this writ petition and the writ petition is dismissed. However liberty is reserved in favour of the petitioner to avail the alternative remedy as per law.
7. With above observation, this writ petition is disposed of.