Nafr High Court
Case Details
1 AJAY KUMAR DWIVEDI 2025.02.10 11:21:08 +0530 2025:CGHC:6742 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPT No. 27 of 2025 M/s Satyendra Nath Biswas Proprietor Shri Satyendra Nath Biswas, Aged About 60 Years, R/o - 03/31, Anant Vihar, Daldal Sewani Road Mowa, Raipur, Raipur, Chhattisgarh, 492004. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through Principal Secretary, Department Of Commercial Taxes And Gst, Mantralaya, Mahanadi Bhawan, New Raipur, Atal Nagar, District Raipur (C.G.) 492002. 2 - The Commissioner Gst And State Tax, Chhattisgarh State Tax, Raipur Division- 2, Circle - 8, Raipur (C.G.). 3 - The State Tax Officer, Chhattisgarh State Tax, Raipur Division -2, Circle - 8, Raipur (C.G.). ... Respondent(s) For Petitioner(s) :
Legal Reasoning
Mr. Anurag Tripathi, Advocate. For Respondent(s)/State : Mr. Dilman Rati Minj, GA. SB : Hon'ble Shri Justice Deepak Kumar Tiwari
Decision
Order o n Board 06.02.2025 1. This writ petition under Article 226 of the Constitution of India has been filed for the following reliefs:- 2 “10.1 That, this Hon’ble Court may kindly be pleased to issue an appropriate writ, order, or direction quashing the impugned order dated 16.04.2024 passed by respondent No.3. 10.2 That, to direct the respondents to reconsider the case of the petitioner after granting opportunity of hearing. 10.3 Hold that the services provided by the petitioner are taxable at the concessional rate of 12 % under Notification No.11/2017-Central Tax (Rate). 10.4 That, any other relief(s), that this Hon’ble Court may deem fit and proper to grant interest of justice; together with cost of the petition.” 2. The petitioner M/s. Satyendra Nath Biswas is a proprietorship firm engaged in providing construction services in respect of commercial, industrial building and civil structure. It is duly registered under the Central Goods and Services Tax Act, 2017 (for short “Act 2017”) bearing GSTIN No.22AHAPB6544P2ZD. On 31.10.2023, a notice has been served to the petitioner in Form ASMT 10 for conducting scrutiny of returns filed for Financial Year 2018-19 under Section 61 of the Act 2017. However, due to lack of awareness and technical knowledge, the petitioner could not respond the said notice. Subsequently, on 14.12.2023 another notice was issued to the petitioner under Section 73 of the Act 2017 alleging incorrect classification of supplies as NIL/exempted and tax liability at the rate of 28% was proposed. Thereafter, an ex parte order was passed against the petitioner on 16.04.2024 directing the petitioner to pay the tax along with interest and penalties. Hence, this petition. 3. Learned counsel for the petitioner would submit that impugned order 3 passed by the respondent is arbitrary and contrary to law as the services provided by the petitioner is not covered under the GST rate of 28 % and the applicable rate is 12 % as per the Notification issued by the Govt. of India. He also submits that the petitioner provides works contract services to the government entities specifically for the construction of drainage systems which are taxable at the concessional rate of 12%. He further submits that sub section (4) of Section 75 of the Act 2017 mandates that an opportunity of hearing shall be granted to a person chargeable with tax or penalty. Section 75 also provides three opportunities of hearing to the said person. In view of such submission, learned counsel for the petitioner submits that proper taxation has not been made by the respondent and the impugned order has been passed in violation of principle of natural justice and prays to allow the petition. 4. Per contra, learned State counsel opposes the prayer of the petitioner and submits that the ground raised by the petitioner with regard to want of technical knowledge and awareness is not acceptable and there is substantial compliance of natural justice. He would also submit that even after receipt of the said notice, no response was made by the petitioner. He also submits that no request in writing was made by the petitioner in pursuance of Section 75 (4) of the Act 2017. He further submits that Section 75 (5) of the said Act says that the proper officer shall, if sufficient cause is shown by the person chargeable with tax, grant time to the said person and adjourn the hearing for the reasons recorded in 4 writing. However, since the petitioner did not participate in the said proceedings, the above provision is not applicable in petitioner’s case. He also submits that the petitioner has an efficacious alternative remedy under Section 107 of the Act 2017, however, without availing such alternative remedy, the petitioner has adopted this route which is unjustifiable. Therefore, this petition deserves to be dismissed. 5. Heard learned counsel for the parties and perused the documents placed on record. 6. It is well settled law that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the High Court under Article 226 of the Constitution of India has not pursued, would not oust the jurisdiction of the High Court and render a writ petition as not maintainable. Where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, petition cannot be throw/dismissed only on the ground of alternative remedy. 7. However, the averments in the present petition itself depicts that two notices were received by the petitioner and the reason for not responding to such notices is not sufficient, as at Para 8.6, it is mentioned that “due to lack of awareness and technical knowledge, the petitioner could not respondent to the said notice”. Therefore, it cannot be said that substantial compliance of natural justice has not been made. Moreover, there is efficacious alternative remedy in favour of the petitioner of filing an appeal under Section 107 of the Act 2017. 5 8. For the foregoing, this Court is of the view that the petitioner has not been able to make out a case for interference by this Court under Article 226 of the Constitution of India. 9. In the result, the petition fails and is hereby dismissed at the motion stage itself. Ajay Sd/- (Deepak Kumar Tiwari) Judge