Facts of the Case

  • The Parties: The petitioners in this matter are M/s HD Enterprise, a proprietorship firm located at D Sector, Itanagar, Papum Pare District, Arunachal Pradesh, along with its proprietor, Mr. Hamam Daba.
  • The Respondents: The writ petition was moved against the Union of India through the Secretary of the Ministry of Finance, alongside the Commissioner (Appeals) of Central Goods and Service Tax, the Assistant Commissioner of CGST, and the Superintendent of CGST (Itanagar Zone-II).
  • Background: The petitioners approached the Hon’ble Gauhati High Court (Itanagar Bench) by filing a writ petition designated as WP(C)/231/2026 to seek judicial intervention against a grievance or order originating from the CGST department.
  • Procedural Action: When the matter came up for hearing before the Single Judge Bench, the counsel representing the petitioners chose not to press the petition on its merits at that stage and instead requested procedural recourse.

Issues Involved

  • Whether the petitioner could be permitted to withdraw the ongoing writ petition filed under Article 226 of the Constitution of India without prejudice to their rights.
  • Whether the High Court should grant "liberty to file afresh," thereby enabling the petitioner to re-agitate the tax dispute or approach the proper statutory appellate channel under the CGST architecture.

Petitioner’s Arguments

  • The learned counsel for the petitioners, Mr. G. Phukan, formally submitted before the court that the petitioners wished to withdraw the current writ petition.
  • The petitioner’s counsel specifically prayed for the court's leave to grant "liberty to file afresh," ensuring that the withdrawal would not act as a legal bar (res judicata) for seeking subsequent legal remedies or submitting a corrected petition addressing the underlying tax dispute.

Respondent’s Arguments

  • The respondents were represented by Ms. O. Jerang, appearing on behalf of Mr. M. Kato (Learned Deputy Solicitor General of India / Standing Counsel for Central Excise and Customs), and Mr. T. Kipa (Learned Standing Counsel for CGST).
  • The counsels for the Revenue/Union of India were present during the proceedings and did not object to the simple withdrawal request made by the petitioners.

Court Order / Findings

  • Bench: Hon’ble Mr. Justice Kardak Ete.
  • Ruling: The Hon’ble High Court accepted the submission made by the petitioner’s counsel.
  • Disposition: The writ petition was formally closed on account of withdrawal. Crucially, the court explicitly granted the requested "liberty to file afresh," keeping the legal options of the taxpayer alive.

Important Clarification

  • Significance of "Liberty to File Afresh": In tax litigation, withdrawing a writ petition without securing "liberty" can prevent a taxpayer from approaching the court again on the same cause of action. By granting liberty, the Gauhati High Court preserved the taxpayer's right to re-frame their legal challenge or approach the CGST Appellate Authority without facing technical rejections.

Section Involved

  • Primary Section: Section 107 of the Central Goods and Services Tax (CGST) Act, 2017 (Appeals to Appellate Authority) / Article 226 of the Constitution of India (Power of High Courts to issue certain writs).
  • Relevant Authorities Named: Section 2(8) (Central Tax Officer), representing the Commissioner (Appeals), Assistant Commissioner, and Superintendent of Central Goods and Service Tax.

Link to download the order - https://mytaxexpert.co.in/uploads/1783070296_473compressed.pdf

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