M/S.Yadavalli Sravan Kumar vs. Superintendent Of Central Tax - Andhra Pradesh High Court, 05 March 2024

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI (Special Original Jurisdiction) WEDNESDAY, THE SIXTH DAY OF MARCH TWO THOUSAND AND TWENTY FOUR PRESENT THE HON’BLE SRI JUSTICE RAVI NATH TILHARI AND THE HON’BLE SRI JUSTICE HARINATH.N WRIT PETITION NO: 2233 OF 2024 Between; M/s.Yadavalli Sravan Kumar, M/s. Sravan Co., RS No. 195/2, Panchayath Road, Decherla, Kowuru - 534342, Andhra Pradesh, represented by its Proprietor, Sri Yadavalli Sravan Kumar. ...PETITIONER AND Superintendent of Central Tax, Nidadavolu COST Range, Door No.3- 10-5/1, Ramnagar, Nidadavolu - 534 301, West Godavari District, Andhra Pradesh. Superintendent of Central Tax, Eluru COST Range, Eluru. M/s. Navabharath Limited, 17-474, Aswaraopet Road, Uppalameta, Jangareddy Gudem - 534447, Andhra Pradesh. M/s.Deligent Industries Limited, Dwaraka Tirumala Road, Denduluru- 534432 Andhra Pradesh. State of Andhra Pradesh, represented by its Special Chief Secretary, Revenue Department (CT), A.P. Secretariat, Velagapudi, Amaravathi Mandal, Guntur District. 1. 2. 3. 4. 5. ...RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ or order or direction particularly one in the nature of Writ of Certiorari after calling for records and quash the impugned passed by the first respondent in Order in Original No. 1/2023-24 - GST, O.C. No. 33/2023-24, Vide DIN No. 20230955YK000000A45D, dated 07.09.2023, for the tax period 2017-18, in disallowing Input Tax Credit of Rs.8,87,522/-, levying penalty amounting to Rs.88,752/- under Section 73(9) read with Section 122(1) of the COST Act, 2017, besides levy of interest under Section 50(3) read with Section 73(1) of the COST Act, 2017, and the corresponding provisions as laid down in the APGST Act, 2017, in denying Input Tax Credit on the wrongful claim of Input Tax Credit made by the fourth respondent herein on the purchases made by the petitioner as illegal, arbitrary, contrary to the evidence on record, without # authority of law and without jurisdiction. lA NO: 1 OF 2024 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the writ petition, the High Court may be pleased pending disposal of the Writ Petition, grant stay of collection all further proceedings arising in pursuance of order passed by the first respondent in Order in Original No. 1/2023-24 - GST, O.C. No. 33/2023-24, Vide DIN No. 20230955YK000000A45D, dated 07.09.2023, for the tax period 2017-18, or to pass such further or other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case, pending disposal of the above writ petition. Counsel for the Petitioner: SRI S. SURI BABU Counsel for the Respondent Nos.1 & 2 : SRI Y. N. VIVEKANANDA, SC FOR CBIC Counsel for the Respondent Nos.3 & 4 : Counsel for the Respondent No.5 : GP FOR COMMERCIAL TAX

The Court made the following: ORDER

HON'BLE SRI JUSTICE RAVI NATH TILHARI AND HON'BLE SRI JUSTICE HARINATH NUNEPALLY WRIT PETITION N0.2233 of 2024 ORDER:- (per Sri Justice Ravi Nath Tiihari) Marks, Mumbai and Others^ the Hon'ble Apex Court has held as under: The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for 'any other purpose.' 'Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its juri iction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has 14. 15. ^ 8 Supreme Court Cases 1

3 r been filed for the enforcement of any of the Fundamental Rights or where there has been in violation of the principie of natural justice or where the order or proceedings are wholly without juri iction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."

Officer-cum-Assessing Authority and Others^ the Hon'ble Apex Court held as under: Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by Article 226 of the Constitution having come across certain orders passed by the high courts holding writ petitions as "not maintainable" merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ juri iction. The power to issue prerogative writs under Article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself Profitable reference in this regard may be made to Article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner. 4. ^ 2023 see Online sc 95

fact that the petitioner before the high yet, the mere court, in a given case, has not pursued the aiternative remedy avaiiabie to him/it cannot mechanicaiiy be construed as a ground for its dismissai. It is axiomatic that the high courts (bearing in mind the facts of each particuiar case) have a discretion whether to entertain not. One of the self-imposed the exercise of power under Article 226 a writ petition or restrictions on that has evolved through judicial precedents is that the high courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the juri iction of the high court under Article 226 has not pursued, would not oust the juri iction of the high court and render a writ petition 'not maintainable . In a long line of decisions, this Court has made it dear that availability of an alternative remedy does not absolute bar to the "maintainability" of a operate as an writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that "entertainabiiity" and "maintainability" of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight o.f The objection as to "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of "entertainabiiity" is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound -degai point, if grant of the claimed relief would not 5 further public interest Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper." Learned counsel for the petitioner could not argue any of these grounds as in aforesaid judgments, so as to entertain the Writ Petition, permitting the petitioner to by-pass the statutory alternative remedy.

8.9.

The Writ Petition is dismissed on the sole ground of statutory alternative remedy being available to the petitioner. No order as to costs. As a sequel, miscellaneous petitions, if any, pending in this Writ Petition shall stand closed. U. SRIDEVI ASSISTANT REGISTRAR //// SECTION OFFICER To, Sri S. Suri Babu, Advocate [OPUC]

One CC to 2. One CC to Sri Y. N. Vivekananda, SC for CBIC Advocate [OPUC] GP for Commercial Tax, High Court of Andhra Pradesh.

Two CCs to (OUT)

Three C.D. Copies. Cnr 0

HIGH COURT DATED:06/03/2024 ORDER of ANDH^ s’ 10 OC" ir) ™ WP.No.2233 of 2024 ^ Current Section ^ DISMISSING THE W.P. WITHOUT COSTS