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5. Under such circumstances, the CA Firm invoked the provisions of the MSMED Act and approached the MSEFC by way of references under Section 18 of the Act.

6. Pursuant to the said references, the matter was thereafter referred to the Delhi International Arbitration Centre (hereinafter 'DIAC') by the MSEFC vide the impugned reference orders and a retired judge of the Supreme Court was appointed as the Arbitrator in W.P.(C) No. 16294/2022. However, in W.P.(C) No. 13754/2019, the ld. Arbitrator was yet to be appointed.

24. As a result, on 16th November 2018, the CA Firm filed a reference under Section 18 of the MSMED Act before the MSEFC for the recovery of the balance amount of fee along with interest as provided under Section 15 and Section 16 of the MSMED Act.

25. Thereafter, the MSEFC initiated conciliation proceedings between the CA Firm and the IT Department. Despite a number of meetings being held for conciliation between the parties, conciliation proceedings between the parties failed and were accordingly terminated. It may be pertinent to note that the IT Department raised objections over the applicability of Section 16 of the MSMED Act to payments pursuant to order under Section 142(2D) of the IT Act, as recorded in the minutes of the joint meeting held on 20 th December 2018.Further, in its written submissions before the MSEFC, the IT Department challenged the jurisdiction of the MSEFC.

14. Reliance is also placed on the salutary principle of natural justice that no man can be a judge in his own cause to argue that the IT Department cannot be judging its own case as to whether the determination is final. Reliance is placed upon two decisions of the ld.

Supreme Court in 'J. Mohapatra & Co and Anr. v. State of Orissa & Anr. [Civil Appeal No. 6814/1981]' as also 'Union of India & Anr v. Tulsiram Patel & Ors. [Civil Appeal No. 6814/1981]'. F. That in terms of Section 293 of the IT Act, it is only the availment of a remedy before the Civil Court which is barred. Reliance is placed upon the Gujarat High Court Judgment which has also been upheld by the Suprem Court in 'Principal Chief Engineer v. Manibhai and Brothers (Sleeper)[FA No. 637 of 2016]' to argue that the MSEFC is not a judicial authority let alone a civil court. G. That the appointment under Section 142(2A) of the IT Act is not a statutory appointment since it fastens the duty upon the Assessee to get its accounts audited from the nominated CA concern. It does not cast any obligation on the CA firm to compulsorily carry out the audit. H. That insofar as Section 24 and Section 18 of the MSMED Act are concerned, both the provisions make it clear that they are notwithstanding any other law for time being in force. As long as the buyer-supplier relationship is established, the dispute relates to the recovery of amounts and the supplier is within the jurisdiction of the MSEFC, the jurisdiction of the MSEFC cannot be excluded. Further, these non-obstante provisions of the MSMED Act have an overriding effect as compared to Section 293 and Section 142(2D) which are merely normal provisions of the IT Act.

O. It is specifically submitted, that the Petitioner, by its own admission has accepted that there lies no remedy in the IT Act against the order under Section 142(2D) of the same, and thus the Respondent cannot be left remediless and would be entitled to explore alternate remedies that it may be eligible for.

P. That the present petitions are not maintainable on account of non-maintainability of writ jurisdiction during arbitral proceedings. Further as the jurisdiction of the MSEFC over the dispute was not challenged before the MSEFC the writ jurisdiction is not maintainable. He relies upon the decision in 'BHEL v. MSEFC [W.P.(C) 10886/2016]', wherein the ld. Single Judge of this Court has held that if the jurisdiction is not challenged before the MSEFC, the same cannot be raised in a writ petition.