M/S Hitendra Kumar Mishra, (A Partnership Firm) vs. The Union Of INDIA

Held

The Court held that when a statutory forum is created by law for the redressal of grievances, a writ petition should not be entertained, thereby ignoring the statutory dispensation. The Court noted that the petitioner has a remedy of filing an appeal before the tribunal, which has reportedly started functioning. Therefore, the Court disposed of the writ application, granting liberty to the petitioner to file an appeal before the tribunal within a period of three weeks. The Court further directed that if an appeal is filed, the tribunal shall consider it on its merits without raising any objection regarding the delay. The Court did not decide on the merits of the petitioner's claim regarding the imposition of tax on non-GST items, as the matter was remitted to the tribunal.

Facts

The petitioner, M/s Hitendra Kumar Mishra, a partnership firm, filed a writ application challenging an order dated 15.02.2025 passed by the Additional Commissioner (Appeal), Tirhut Division, Muzaffarpur. This order upheld the decision of the Adjudicating Authority under Section 73 of the BGST Act, 2017, for the financial year 2017-18. The petitioner contended that the tax was imposed on non-GST items, specifically on an amount of Rs. 2,58,20,041/- which pertained to the VAT regime, out of a total gross turnover of Rs. 2,79,87,896/-. The petitioner argued that the Appellate Authority erred by not appreciating that tax was levied on non-GST items. The revenue, represented by the State, argued that the petitioner had an alternative statutory remedy of appeal before the tribunal, which is now functional.

Key Issues

1. Whether the Appellate Authority erred in law by upholding the imposition of tax on non-GST items, specifically turnover pertaining to the VAT regime, when the petitioner's appeal was based on this contention? (Mixed question of law and fact, concerning Section 73 of the BGST Act, 2017). Petitioner's contention: The petitioner argued that the tax was wrongly imposed on items that were not subject to GST, as they fell under the previous VAT regime. They contended that the Appellate Authority failed to appreciate this crucial fact, leading to an erroneous rejection of their appeal. The petitioner relied on the principle that tax cannot be levied on non-taxable items. Revenue's contention: The State argued that the petitioner had an available statutory remedy under Section 112 of the GST Act by filing an appeal before the tribunal. They submitted that since the tribunal is functional, the petitioner should be relegated to this statutory remedy and the writ petition should not be entertained.