M/S New Janta Hardware vs. The State Of Bihar

Held

The Court permitted the petitioner to withdraw the writ application with liberty to avail the remedy before the Appellate Authority as and when constituted. The Court noted the submission of the State respondents that if the petitioner approaches the Assessing Officer with an application seeking stay of the impugned demand within four weeks from the date of the order, the Assessing Officer shall consider and pass an appropriate order expeditiously. The Court also directed that in the meantime, no coercive action shall be taken against the petitioner. The primary finding was that the writ was not the appropriate forum due to the existence of an alternative statutory remedy. The ratio decidendi is that a writ petition will not be entertained when an efficacious alternative remedy is available, even if the appellate authority is not presently constituted, provided a mechanism for interim relief is available.

Facts

The petitioner, M/s New Janta Hardware, through its Proprietor Sudhir Kumar, filed a writ application before the Patna High Court. The State respondents, represented by learned Standing Counsel-11, raised a preliminary objection regarding the availability of a statutory alternative remedy. They contended that the petitioner has a right to file an appeal under Section 112(1) of the Bihar Goods and Services Tax/Central Goods and Services Tax Act, 2017, before the Appellate Tribunal. They further submitted that even if the Tribunal is not presently constituted, the petitioner can file the appeal within three months of its constitution and may simultaneously file an application for stay of the impugned demand before the Assessing Officer, which would be considered expeditiously. The petitioner’s counsel agreed to withdraw the writ application with liberty to pursue the remedy before the Appellate Tribunal and to file an application for interim stay before the Assessing Officer.

Key Issues

1. Whether the writ application is maintainable given the availability of a statutory alternative remedy of appeal before the Appellate Tribunal under Section 112(1) of the BGST/CGST Act, 2017? The petitioner argued for the maintainability of the writ, while the respondents contended that the statutory remedy should be exhausted first. The respondents relied on the principle of alternative remedy. The petitioner did not explicitly argue against the existence of the alternative remedy but sought to pursue the writ. The respondents also proposed a course of action for the petitioner to approach the Assessing Officer for a stay application while awaiting the Tribunal's constitution.