M/S. Gvk Energy Limited vs. The Assistant Commissioner (St)

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WP/32826/2024HC TelanganaGSTCNR HBHC01063553202402 January 2025Bench: SUJOY PAUL,G.RADHA RANI3 pages
For Petitioner: SRl. M. NAGA DEEPAKFor Respondent: SRI GADI PRAVEEN KUMAR, DY. SOLICITOR GENERAL OF INDIA
AI SummaryPartly Allowed

Facts

The petitioner, GVK Energy Limited, filed a Review IA seeking to review a judgment and order dated January 2, 2025, passed in Writ Petition No. 32826 of 2024. The original writ petition, along with a batch of other matters, had been decided by relegating the petitioners to the remedy of appeal. The petitioner argued that the appellate remedy was not efficacious in their case because the validity of Circular No. 204/16/2023-GST and Rule 28(2) of the CGST Rules, as amended by Notification No. 52/2023-Court dated October 26, 2023, were challenged. The petitioner contended that these specific circular and rule could not be questioned before the appellate authority. The respondents were the Assistant Commissioner (ST), Commissioner of Commercial Taxes, State of Telangana, and Union of India through its Ministry of Finance and CBIC.

Held

The Court, in view of the consensus arrived at between the parties, disposed of the Review IA. The Court permitted the petitioner to file a fresh writ petition assailing the Circular No. 204/16/2023-GST and Rule 28(2) of the CGST Rules, as amended by Notification No. 52/2023-Court. The Court acknowledged the petitioner's submission that the appellate remedy was not efficacious for challenging the validity of these specific provisions. The order stated that the previous order of review would not impede the petitioner from filing a fresh writ petition and would not relegate them to the appellate remedy in this context. The Court did not delve into the merits of the challenge to the Circular or Rule itself, nor did it decide on the validity of these provisions. The primary decision was to allow the petitioner to pursue a fresh writ petition on this specific ground.

Key Issues

1. Whether the petitioner's challenge to the validity of Circular No. 204/16/2023-GST and Rule 28(2) of the CGST Rules, as amended by Notification No. 52/2023-Court, could be effectively adjudicated by the appellate authority, thereby making the appellate remedy efficacious? Petitioner's Argument: The petitioner argued that the appellate remedy was not efficacious because the core of their challenge was against the validity of a specific Circular and a Rule amendment. They contended that such high-level statutory instruments and administrative instructions cannot be questioned before the appellate authority, which is typically limited to reviewing orders passed by lower authorities based on existing law and circulars. Therefore, relegating them to appeal would effectively deny them a proper forum to challenge these provisions. Revenue/State's Argument: The judgment records no specific argument from the respondents regarding the efficacy of the appellate remedy or the scope of the appellate authority's power in relation to challenging the validity of the Circular and Rule.

Sections Cited

Rule 28(2)

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
[ 3430 ] HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original'Jlltisdiction) WEDNESDAY,THE TWELFTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT .THE HONOURABLE ACTING CHIEF JUSTICE SUJOY PAUL AND THE HONOURABLE DR. JUSTICE G.RADHA RANI REVIEW IA NO.3 0F 2025 IN WRIT PETITION NO: 32826 oF 2024 Between: ---'--Mi;. GVK Energy Limited, Having it-s--offict-at 156-159, Paigah..House' s.F.nora, securi<lraoao, relanganS - 500003.Represented by its Authorized Sionatorv. MrSanieev-kumir"singl-r, S/o.Late Madan Gopal Singh Aged ab-out 60 vears' R/ir' Hyderabad -..REVrEw pETlrloNER/pETlrloNER AND 1. 2. .) 4. E The Assistant Commissioner (ST), l\4alkajgiri-1 Circle, Malkajgiri GST Division, Hyderabad. Corrit'"ioher. of Commercial Taxes, State of Telangana, C T Complex, Namoallv. Hvderabad- 500001 . Striiot tetinoani- n"p. bv its Principal Secretary, (Revenue) Department' Telanqana. Se-cretarlat Buih ings, Hyderabad. U;il? i;'dir, i.pi"l"nteo by its Sectetqry, tilinistry of Finance, Department of Revenue. Central Secretariat, New Delhi C"ritirt go-r'rd ot tnairect Taxes'and Cus-toms, Department of Revenue, Ministry of Finance, New Delhi. ...RESPONDENTS/RESPONDENTS Petition order 47 Rule 1 of cPC Under section'.l 14 of cPC praying that in the circumQtances stated in the affidavit filed in support of the petilion, the High court may be pleased to review the Judgment and order daled' 02-01-2025 passedinW.P.No'32826ot2024andconsequentlyrecalltheSameandhearthe Petitioner in respect of all the issues raised in the writ petition Counsel for the Petitioner: SRl. M. NAGA DEEPAK Counsel for ihe Respondent Nos. 1to3: GP FOR COMMERCIAL TAX Counsel for the Respondent No.4: SRI GADI PRAVEEN KUMAR, DY. SOLICITOR GENERAL OF INDIA Counsel for the Respondent No.S: SRI DOMINIC FERNANDES' SC

The Court made the following: ORDER

Sri M. Naga Deepak, learned counsel for the petitioner. Sri Swaroop Oorilla, learned Special Government Pleader for State Tax, for respondent Nos. 1to3. Learned counsel for the petitioner submits that WP.No. 32826 oI 2024 was decided o n 02.A1.2025 with batch matters including WP.No. 1154 ot 2O24. By the common order, the petitioners were relegated to avail the remedy of appeal, ln the present writ petition, the said remedy is not efficacious for the petitiongr besause 'ralidity of Circular No.20411612023-GST and Rule 28(2) of the CGST Rules as amended by Notification No. 5212023-Court, date( 26,10.2023, were subject matter of challenge. This Circular and Rule cannot be called in question before the appellate authority. During the course of hearing, it is agreed that the petitioner may be permifted to file a fresh writ petition assailing the aforesaid Circular and Rule and the order of review in that event will not come in his way and it relegates him to avail the remedy of appeal. ln view of the consensus arrived at, this application is disposed of by permitting the petitioner to file a fresh writ petition assailing the aforesaid Cirqulal and Rule. .N. SRIHARI REGISTRAR //// ON OFFICER To, A 1. The Assistant Commissioner (ST), Malkajgiri-1 Circle, t\4alkajgiri GST Division, Hyderabad.

2.

Commissioner of Commercial Taxes, State of Telangana, C.T. Complex, Nampally, Hyderabad- 500001. 3. State of Telangana, Rep. by its Principal Secretary, (Revenue) Department, Telangana, Ser:retariat Buildings, Hyderabad.

4.

Union of lndia, Represented by its Secretary, Ministry of Finanib, Department of Revenue, Central Secretariat, New Delhi.

5.

Central Board of lndirect Taxes and Customs, Department of Revenue, Ministry of Finance, New Delhi.

6.

One CC to SRl. M. NAGA DEEPAK, Advocate [OPUC]

7.

Qne QQ to SRI. GADI PRAVEEN KUIVAR, DY. SOLICITOR GENERAL OF rNDrA [OPUCI B. Two CQs to GP FOR COMMERCIAL TAX, High Court for the State of Telangbna, at l-lyderabad [OUT]

9.

One CC to SRl. DOIMINIC FERNANDES, SC IOPUC] 10.Two CD Copies; %3 M J SI

HIGH COURT DATED:1210212025 ORDER REVIEW IA. NO.3 OF 2025 IN WP.No.32826 of 2024 DISPOSING OF THE IA ( 1iiE siTAft- ) i) 12 tr',lii 2025 .r t \\ -\o$ i:."l!)/ ,{

Reproduced from the public record of the Telangana High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.