M/S. Laxmi Construction, Odisha vs. State Tax Officer, CT And GST Circle, Barbil
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Cause title — parties, addresses and appearances
said adjudicatory order.
This Court heard Ms. Kajal Sahoo, learned counsel for the petitioner and Mr. Sunil Mishra, learned Standing Counsel for Revenue in hybrid mode and perused the records. Considering the nature of dispute involved, with the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission.
On perusal of the records, it appears that the impugned order was passed on 07.12.2021 under Section 74 of the OGST Act, 2017 by the adjudicatory authority, which has been challenged before this Court in the present case only on 18.04.2024. Thus, the order having been passed on 07.12.2021, the present writ petition has been filed after the period of limitation prescribed under the Act. It is also not in dispute that against the order impugned the petitioner has not exhausted the alternative remedy by way of filing appeal, as available under the statute. As such, the present writ petition, having been filed without availing the alternative remedy, cannot be entertained.
In Assistant Commissioner (CT) LTU, Kakinada (supra), the apex Court at paragraphs-14 and 15 held as follows:- “14. A priori, we have no hesitation in taking the view that what this Court cannot do in exercise of its plenary powers under Article 142 of the Constitution, it is unfathomable as to how the High Court can take a different approach in the matter in reference to Article 226 of the Constitution. The principle underlying the rejection of such argument by this Court would apply on all fours to the exercise of power by the High Court under Article 226 of the Constitution.
We may now revert to the Full Bench decision of the Andhra Pradesh High Court in Electronics Corporation of India Ltd. (supra), which had adopted the view taken by the Full Bench of the Gujarat High Court in Panoli Intermediate (India) Pvt. Ltd. v. Union of India and Ors. and also of the Karnataka High Court in Phoenix Plasts Co. v. Commissioner of Central Excise (Appeal-I), Bangalore. The logic applied in these decisions [2023/RJJD/012624] (7 of 8) [CW-2785/2023] proceeds on fallacious premise. For, these decisions are premised on the logic that provision such as Section 31 of the 1995 Act, cannot curtail the juri iction of the High Court under Articles 226 and 227 of the Constitution. This approach is faulty. It is not a matter of taking away the juri iction of the High Court. In a given case, the Assessee may approach the High Court before the statutory period of appeal expires to challenge the assessment order by way of writ petition on the ground that the same is without juri iction or passed in excess of juri iction-by overstepping or crossing the limits of juri iction including in flagrant disregard of law and Rules of procedure or in violation of principles of natural justice, where no procedure is specified. The High Court may accede to such a challenge and can also non-suit the petitioner on the ground that alternative efficacious remedy is available and that be invoked by the writ petitioner. However, if the writ petitioner chooses to approach the High Court after expiry of the maximum limitation period of 60 days prescribed under Section 31 of the 2005 Act, the High Court cannot disregard the statutory period for redressal of the grievance and entertain the writ petition of such a party as a matter of course. Doing so would be in the teeth of the principle underlying the dictum of a three- Judge Bench of this Court in Oil and Natural Gas
Corporation Limited (supra). In other words, the fact that the High Court has wide powers, does not mean that it would issue a writ which may be inconsistent with the legislative intent regarding the dispensation explicitly prescribed under Section 31 of the 2005 Act. That would render the legislative scheme and intention behind the stated provision otiose."
Relying on the aforesaid decision of the apex Court, the High Court of Judicature for Rajasthan in Malik Khan (supra) dismissed the writ petition which was filed after eight months of expiry of limitation.
So far as communication of the order is concerned, Section 169 (1) (d) provides as follows:- “169. Service of notice in certain circumstances:- (1) Any decision, order, summons, notice or other communication under this Act or the rules made there under shall be served by any one of the following methods, namely:- xxx
xxx
xxx
(d) by making it available on the common portal;
or” In view of the aforesaid provision, it is made clear that even though the petitioner has not been communicated with the order physically, but since the same was made available on the common portal, it is deemed to have been served on him. Therefore, such plea is of no use for the petitioner.
In view of the foregoing discussions and by applying the aforesaid principles to the present case, this Court is of the considered view that since the petitioner has not filed any statutory appeal before the appellate authority within the limitation period and has directly filed this writ petition before this Court after two years and five months of passing of the impugned order, the writ petition filed by the petitioner cannot be entertained as being not maintainable.
Thus, the writ petition merits no consideration and the same is accordingly dismissed. But, however, in the facts and circumstances of the case, there shall be no order as to costs.
(DR. B.R. SARANGI)
JUDGE
G. SATAPATHY, J. I agree.
(G. SATAPATHY)
JUDGE Orissa High Court, Cuttack The 09th May, 2024, Arun
Reproduced from the public record of the Orissa High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.