Writ Petition Won’t Be Ordinarily Entertained Once Aggrieved Person Has Challenged Other Issues In Impugned Order Before Appellate Authority: Madras HC

The Madras High Court said that the writ petition will not be ordinarily entertained once the aggrieved person has chosen to challenge other issues before the Appellate Authority.

The Court was dealing with a writ petition seeking issuance of a Certiorari Writ, calling for the records relating to passing of the order of the Assistant Commissioner (ST) (FAC) and quash the demand tax under CGST (Central Goods and Services Tax) and SGST (State Goods and Services Tax) along with the interest and penalty.

A Single Bench of Justice Senthilkumar Ramamoorthy enunciated, “… notwithstanding the fact that the petitioner had approached the appellate authority in respect of other issues, I am inclined to exercise jurisdiction. It is needless to say that a writ petition would not ordinarily be entertained once the person aggrieved has chosen to challenge other issues in an order before an appellate authority.”

The Bench also emphasised that the existence of an alternative remedy is a material consideration but not a bar to the exercise of jurisdiction.

Advocate G. Natarajan appeared on behalf of the petitioner while Additional Government Pleader C. Harsha Raj appeared on behalf of the respondent.

In this case, the petitioner received a show case notice, calling it upon to show cause with regard to six defects. The defect no. 3 pertained to reversal of Input Tax Credit (ITC) in respect of credit notes issued by the supplier. The counsel for the petitioner submitted that the value of supply would not include a discount only if the conditions prescribed in clauses (a) or (b) of Section 15(3) of applicable GST statutes are satisfied. As per the counsel, the case did not fall within the scope of the said provision and consequently, it was contended that the credit notes issued by the supplier were not financial credit notes.

It was further contended that the recipient or tax payer is not liable to reverse ITC to the extent of the value of the credit notes. By referring to the relevant part of the impugned order of the respondent (Assistant Commissioner), the counsel also submitted that the discount offered by the supplier was erroneously construed as a service provided by the purchaser to the supplier. Consequently, it was contended that the impugned order calls for interference on such issue.

The High Court in the above context of the case noted, “The contention of learned Additional Government Pleader remains to be considered. The exercise of jurisdiction under Article 226 is discretionary and subject to self imposed fetters. One such fetter is when an efficacious alternative remedy is available. It should be borne in mind that the existence of an alternative remedy is a material consideration but not a bar to the exercise of jurisdiction. In the case at hand, on the basis that the other issues require re-appraisal of evidence, the petitioner has approached the appellate authority in respect thereof. As regards this issue, since it is a pure legal issue, the petitioner has chosen to approach this Court.”

The Court, therefore, observed that the Appellate Authority under applicable GST statutes does not have the power to remand.

Accordingly, the Court disposed of the writ petition, set aside the impugned order to an extent, remanded defect no. 3 for reconsideration by the original authority, and directed the assessing officer to issue a fresh order within three months.

Cause Title- Tvl. Shivam Steels v. Assistant Commissioner (ST) (FAC)

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