Case Note & Summary
The petitioners, Gulf Oil Lubricants India Ltd. and Dinesh Engineers Limited along with Dinesh K. Kargal, filed writ petitions under Article 226 of the Constitution of India before the Bombay High Court challenging orders-in-appeal passed by the State Tax Authorities under the Maharashtra Goods and Services Tax Act, 2017. The petitioners had received show cause notices which were adjudicated resulting in orders-in-original. They filed appeals before the Appellate Authority, which were dismissed. The petitioners then sought to challenge these appellate orders before the Goods and Services Tax Appellate Tribunal under Section 112 of the MGST Act, but the Tribunal had not been constituted. Consequently, they invoked the writ jurisdiction of the High Court on the ground that the alternative remedy of appeal to the Tribunal was not available due to its non-constitution. The respondents argued that the petitioners should await the constitution of the Tribunal. The court considered the provisions of Sections 109, 110, and 112 of the MGST Act, which provide for the constitution and functioning of the Appellate Tribunal. The court held that since the Tribunal had not been constituted, the alternative remedy was not efficacious and the petitioners could not be compelled to pursue an illusory remedy. The court allowed the writ petitions, set aside the orders-in-appeal, and remanded the matters back to the Appellate Authority for fresh consideration on merits, with a direction to decide the appeals within a period of three months from the date of the order. The court also directed that the petitioners be given an opportunity of hearing and that the Appellate Authority shall pass reasoned orders.
Headnote
A) Constitutional Law - Alternative Remedy - Exhaustion of Alternative Remedy - Article 226 of the Constitution of India - Where the statutory appellate tribunal under Section 112 of the Maharashtra Goods and Services Tax Act, 2017 is not constituted, the alternative remedy of appeal is not an efficacious remedy and the High Court can entertain writ petitions under Article 226 - Held that the non-constitution of the tribunal makes the right of appeal illusory and the petitioners cannot be compelled to pursue an ineffective remedy (Paras 3-5). B) Goods and Services Tax - Appellate Tribunal - Non-Constitution - Section 112 of the Maharashtra Goods and Services Tax Act, 2017 - The Appellate Tribunal under the MGST Act has not been constituted despite the statutory mandate - Held that the failure to constitute the tribunal deprives the assessees of their statutory right of appeal, and the High Court can exercise writ jurisdiction to examine the validity of the orders-in-appeal (Paras 3-5).
Issue of Consideration
Whether the High Court can entertain writ petitions under Article 226 of the Constitution of India challenging orders-in-appeal passed under the Maharashtra Goods and Services Tax Act when the statutory appellate tribunal under Section 112 of the Act has not been constituted, thereby rendering the alternative remedy ineffective.
Final Decision
The court allowed the writ petitions, set aside the orders-in-appeal, and remanded the matters back to the Appellate Authority for fresh consideration on merits, with a direction to decide the appeals within three months from the date of the order, after giving the petitioners an opportunity of hearing and passing reasoned orders.
Law Points
- Alternative remedy not a bar when appellate tribunal not constituted
- Section 112 MGST Act
- Article 226 Constitution of India
- Right to appeal rendered illusory
