Claim of ‘Lack of Speedy Remedy’ Not Enough to Invoke Article 226 when Statute Provides Complete Appellate Route: Orissa HC [Read Order]

The Orissa High Court dismissed a writ petition challenging a tax demand raised under Section 73 of the Central Goods and Services Tax Act, 2017 (CGST Act), holding that the petition was barred by delay and that the petitioner’s plea of lacking a speedy or efficacious remedy did not constitute sufficient cause for invoking writ jurisdiction.

The appellant, M/s Narayan Traders, a proprietorship concern, challenged the adjudication order passed under Section 73 of the CGST Act, 2017 and the Odisha Goods and Services Tax Act, 2017 (OGST). The proceedings began after the assessing authority detected mismatches between GSTR-2A and GSTR-3B with respect to Input Tax Credit (ITC) for the period April 2020 to March 2021. A notice in Form GST ASMT-10 was issued, followed by a summary of show-cause notice in Form DRC-01.

Since the appellant did not respond to the notices, the authority proceeded ex parte and passed the final order in Form GST DRC-07. Despite the statutory right of appeal under Section 107 of the CGST Act, the appellant did not file an appeal within the prescribed period and instead filed the writ petition, nearly one year after the demand order.

Counsel Romeet Panigrahi, appearing for the appellant, argued that Section 16 of theCGST Act, 2017 provides entitlement to ITC and that shifting the burden of supplier default onto the purchaser was erroneous. Further, he contended that there existed no other speedy, efficacious or alternative remedy, thereby justifying the invocation of writ jurisdiction.

Opposing the petition, Standing Counsel Sunil Mishra and Seshadeb Das, submitted that the petitioner had a complete remedy under Section 107 of the CGST Act, which was never pursued. They argued that the appellate authority has no power to condone delay beyond the statutory limit of thirty days after the initial three-month period, and therefore, the petitioner could not revive a barred remedy through a writ petition.

Further, submitted that the impugned order had been uploaded on the common GST portal, and under Section 169(1)(d) of the GST Act, such uploading constitutes valid service, rendering the plea of non-communication meritless.

The Bench of Chief Justice Harish Tandon and Justice Murahari Sri Raman held that the writ petition was not maintainable and deserved dismissal. The Court found that the delay of nearly one year in approaching the Court remained wholly unexplained and that the petitioner’s attempt to bypass the statutory appeal process was impermissible.

The Court said that mere making a statement that the petitioner has no other speedy, efficacious or alternative remedy would not constitute sufficient cause to invoke the writ jurisdiction under Article 226 of the Constitution, particularly when the statute provides a clear and complete appellate framework.

The Court further noted that service of the order through the common GST portal is deemed service under Section 169, negating the petitioner’s submission that the order was not communicated. Additionally, the Court held that questions relating to eligibility for ITC involve disputed facts and must be adjudicated by the statutory appellate authority and not in writ proceedings.

The Bench ruled the present writ petition as not at all maintainable, much less entertainable. Consequently, the writ petition and all pending applications were dismissed.