Madhya Pradesh High Court
M/S Royal Enterprises Through Vimal ... vs Union Of India on 20 May, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:13411
1
W.P. No.15424 of 2025
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
WRIT PETITION No. 15428 of 2025
M/S GOYAL TRADING CO
Versus
UNION OF INDIA AND OTHERS
WITH
WRIT PETITION No. 15424 of 2025
M/S ROYAL ENTERPRISES THROUGH VIMAL KURANA
Versus
UNION OF INDIA AND OTHERS
WRIT PETITION No. 15425 of 2025
M/S TNH MERCHANTILE PRIVATE LIMITED THROUGH SH.
NAJMUDDIN ROKERYA
Versus
UNION OF INDIA THROUGH MINISTRY OF FINANCE DEPARTMENT
OF REVENUE AND OTHERS
AND
WRIT PETITION No. 15427 of 2025
M/S BHARAT SCRAP THROUGH VIJAY KUMAR KHURANA
Versus
UNION OF INDIA AND OTHERS
Appearance:
Shri Sudhir Malhotra, learned Counsel assisted by Shri Vishal Lashkari,
learned counsel for the petitioners in all the writ petitions.
Shri Prasanna Prasad, learned counsel for the respondents.
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 20-05-2025
19:06:26
NEUTRAL CITATION NO. 2025:MPHC-IND:13411
2
W.P. No.15424 of 2025
th
Reserved on : 14 May, 2025
Delivered on : 20th May, 2025
ORDER
Per : Justice Vivek Rusia Since the subject matter of these writ petitions is identical in nature, with the joint request of the parties, they are analogously heard and being decided by this common order. For the sake of convenience, facts of Writ Petition No.15428 of 2025 are being taken into consideration as under:-
01. The petitioner has filed the present petition under Article 226 of the Constitution of India challenging the order date 19.12.2024, i.e. an order in original passed by the Additional Commissioner, office of Principal Commissioner of Central Goods & Service Tax and Central Excise, Bhopal pertaining to Tax Period - 2017 - 18 to 2018 - 19, whereby the recovery of Input Tax Credit (ITC), interest and penalty have been imposed on the petitioner and other noticees.
02. An investigation was conducted by DGGI, Bhopal Unit against M/s R.A. Enterprises on intel of availing the fake/bogus ITC and passing on the same to its various recipients, amounting to Rs 1,39,03,814/-, having taxable value of Rs 7,72,43,380/-. After the search, show-cause notices were issued to as many as 18 noticees; (i) under Section 74 of the Central Goods & Service Tax Act, 2017 (in short 'the CGST Act') r/w section 20 of the Integrated Goods & Service Tax Act, 2017 (in short 'the IGST Act'); and (ii) Section 122(1)(ii) of the CGST Act r/w section 20 of the IGST Act. All the noticees participated in the assessment proceedings before the competent authority i.e. the Additional Commissioner. Now the Signature Not Verified Signed by: RAVI PRAKASH Signing time: 20-05-2025 19:06:26 NEUTRAL CITATION NO. 2025:MPHC-IND:13411 3 W.P. No.15424 of 2025 Assistant Commissioner has passed the Order in Original (O.I.O.) dated 19.12.2024 against the petitioner and others.
03. Instead of availing the remedy of appeal under Section 107 of the CGST Act, the petitioner has approached this Court by way of writ petition under Article 226 of the Constitution of India inter alia, on the ground that the order in original has been passed in gross violation of the principle of natural justice.
04. Learned Counsel appearing for the petitioner submits that respondent No.3 did not allow cross-examination of the witnesses relied on and did not consider the submissions and grounds raised by the petitioner. Learned Counsel further submits that respondent No.3 erred in issuing the common notice dated 02.08.2024 for different financial years. In support of the aforesaid contention, learned Counsel has placed upon several judgment delivered in the cases of Bharat Mint & Allied Chemicals v/s Commissioner of Commercial Tax reported in 2022 (59) G.S.T.L. 394 (All.), Andaman Timber Industries v/s Commissioner of Central Excise, Kolkata-II reported in 2015 (324) E.L.T. 641 (S.C.), Century Textile & Ind.
Limited v/s Union of India reported in 2008 (232) E.L.T. 389 (Bom.), Nishad K.U. V/s The Joint Commissioner, Central Tax and Central Excise, CGST, Kochi & Others (WP (C) No.26732 of 2024), D.Y. Beathel Enterprises v/s State Tax Officer (DATA Cell) Tirunelveli reported in 2022 (58) G.S.T.L. 269 (Mad.), Titan Company Limited v/s The Joint Commissioner of GST and Central Excise & Another neutral citation 2024 - TIOL - 131 - HC - MAD - GST (W.P. No.33164 of 2023), Joint Commissioner (Intelligence & Enforcement) Office of the Joint Commissioner Signature Not Verified Signed by: RAVI PRAKASH Signing time: 20-05-2025 19:06:26 NEUTRAL CITATION NO. 2025:MPHC-IND:13411 4 W.P. No.15424 of 2025 (Intelligence & Enforcement), SGST Department, Thiruvanantapuram & Another v/s M/s Lakshmi Mobile Accessorites (W.A. No.258 of 2025) and M/s Ace Cardiopathy Solutions Private Limited v/s Union of India & Others (W.P. (C) 6758/2024) to show that the writ petition under Article 226 of the Constitution of India is maintainable against the order in original.
05. Learned counsel appearing for the respondents submits that the writ petition is not maintainable due to the availability of an efficacious statutory remedy of appeal. Learned counsel submits that the petitioner, in order to avoid the deposit of 10% of the tax under recovery, has approached this Court by way of writ petition. Learned counsel further submits that the Assistant Commissioner, Bhopal, has passed the final OIO, therefore, the writ petition is not maintainable. In support the aforesaid contention, Shri Prasad, learned counsel has placed reliance upon judgments delivered by the Apex Court in the case of State of Maharashtra & Others v/s Greatship (India) Limited reported in (2022) 17 SCC 332 as well as Division Bench of this Court in the case of Shrigovind Niranjan & Others v/s The State of Madhya Pradesh & Others Neutral Citation - 2024:
MPHC - JBP:56995 (Writ Appeal No.2228 of 2023).
06. We have heard learned counsel for the parties at length and perused the record.
07. So far as the territorial jurisdiction is concerned, this issue is no more res integra. The Division Bench of this Court in the case of Shrigovind Niranjan (supra) has held that the expression 'cause of action' used in Clause (2) of Article 226 of the Constitution of India indisputably even if the small fraction thereof accrues within the Signature Not Verified Signed by: RAVI PRAKASH Signing time: 20-05-2025 19:06:26 NEUTRAL CITATION NO. 2025:MPHC-IND:13411 5 W.P. No.15424 of 2025 jurisdiction of the Court, the Court will have jurisdiction in the matter through the doctrine of forum conveniens may also have to be considered.
08. In the present case, the petitioner is having registration of GSIT as well as the place of business at Indore. The search was conducted in the office situated at Indore, the materials in question were supplied and received in Indore, therefore, merely on the ground that the learned assessing authority who has passed the order in original is stationed at Bhopal, it cannot be held that this Bench at Indore has no jurisdiction to entertain this writ petition. Since the authority is situated in Bhopal, therefore, in view of the judgment passed by the Division Bench of this Court in the case of Shrigovind Niranjan (supra), the Principal Bench also has jurisdiction to entertain the writ petition.
09. So far as the issue of maintainability of writ petition due to availability of remedy of appeal is concerned, it is not in dispute that the writ petition is maintainable in certain circumstances like where there is complete lack of jurisdiction, where vires of act / rules / notification has been challenged, where an order has been passed in total violation of principle of natural justice etc.
10. The petitioner is alleging the violation of principle of natural justice solely on the ground that the opportunity to cross-examine the witnesses was not given. The petitioner has failed to point out when the request was made for cross-examination of the witnesses. By not giving an opportunity to cross-examine the witnesses, whether any prejudice was caused, is liable to be examined by the appellate authority after examining the record and the relevancy of the Signature Not Verified Signed by: RAVI PRAKASH Signing time: 20-05-2025 19:06:26 NEUTRAL CITATION NO. 2025:MPHC-IND:13411 6 W.P. No.15424 of 2025 deposition of the witnesses. The appellate authority would be competent to decide all the issues and grounds raised in the writ petition. There should not be an avoidance of pre-deposit condition for the entertainment of a statutory appeal.
11. The Apex Court in the case of Greatship (India) Limited (supra) has held that the High Court has seriously erred in entertaining the writ petition under Article 226 of the Constitution of India against the assessment order and ought to have relegated the writ petitioner to avail the statutory remedy of appeal. Paragraphs 14 to 17 of the aforesaid judgment are reproduced below:-
''14. Applying the law laid down by this Court in the aforesaid decision, the High Court has seriously erred in entertaining the writ petition under Article 226 of the Constitution of India against the assessment order, by- passing the statutory remedies.
15. Now so far as the reliance placed upon the decisions of this Court by the learned Senior Advocate appearing on behalf of the respondent, referred to hereinabove, are concerned, the question is not about the maintainability of the writ petition under Article 226 of the Constitution, but the question is about the entertainability of the writ petition against the order of assessment by-passing the statutory remedy of appeal. There are serious disputes on facts as to whether the assessment order was passed on 20.03.2020 or 14.07.2020 (as alleged by the assessee). No valid reasons have been shown by the assessee to by-pass the statutory remedy of appeal. This Court has consistently taken the view that when there is an alternate remedy available, judicial prudence demands that the court refrain from exercising its jurisdiction under constitutional provisions.
16. In view of the above facts and circumstances of the case, the High Court has seriously erred in entertaining the writ petition against the assessment order. The High Court ought to have relegated the writ petitioner-assessee to avail the statutory remedy of appeal and thereafter to avail of other remedies provided under the statute.
17. Under the circumstances, the impugned judgment and order passed by the High Court are hereby quashed and set Signature Not Verified Signed by: RAVI PRAKASH Signing time: 20-05-2025 19:06:26 NEUTRAL CITATION NO. 2025:MPHC-IND:13411 7 W.P. No.15424 of 2025 aside. The writ petition filed before the High Court challenging the assessment order and consequential notice of demand of tax is hereby dismissed. The respondent-assessee is relegated to avail the statutory remedy of appeal and other remedies available under the MVAT Act and CST Act. It is directed that if such a remedy is availed within a period of four weeks from today, the appellate authority shall decide and dispose of the same on its own merits in accordance with law without raising any question of limitation, however, subject to fulfilling the other conditions, if any, under the statute. It is made clear that we have not expressed any opinion on the merits of the case in favour of either of the parties and it is for the appellate authority and/or appropriate authority to consider the appeal/proceedings on its/their own merits and without being influenced in any way by any of the observations made by the High Court which otherwise have been set aside by the present order. The present appeal is allowed in the aforesaid terms. However, in the facts and circumstances of the case, there shall be no order as to costs.'' [Emphasis Supplied]
12. In view of the above, all the Writ Petitions stand dismissed with liberty to the petitioner to approach the appellate authority.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
Ravi
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 20-05-2025
19:06:26