Facts of the Case

The petitioner, Vipin Sharma, filed a writ petition before the High Court of Judicature at Allahabad challenging an Order-In-Original dated 26.05.2023 passed under Section 122 of the Central Goods and Services Tax Act, 2017 by the Additional Commissioner, Central GST and Central Excise, Agra. It was not in dispute before the Division Bench that an appellate remedy against the impugned order existed under the CGST Act, and that the petitioner had, in fact, already availed of that remedy by filing a statutory appeal. In these circumstances, the Court was called upon to decide whether it would be appropriate to simultaneously entertain the writ petition when the statutory appeal was already pending. Section 122 of the CGST Act deals with penalties leviable for various specified offences, such as issuing invoices without actual supply of goods or services, evading tax, taking or utilising input tax credit without an actual receipt of goods or services, and similar contraventions, and orders passed under this provision are ordinarily appealable to the first appellate authority under the CGST Act before any further recourse. The Division Bench, comprising Hon'ble Saumitra Dayal Singh, J. and Hon'ble Shiv Shanker Prasad, J., heard brief submissions from counsel for both the petitioner and the Revenue before passing a short, reasoned order on the question of maintainability of the writ petition, given the parallel statutory remedy already invoked by the petitioner. Courts exercising writ jurisdiction under Article 226 of the Constitution generally decline to entertain a challenge to a tax adjudication order where an efficacious, alternative statutory remedy exists, and this principle applies with even greater force where the taxpayer has already chosen to invoke that very remedy by filing a formal appeal, since permitting both proceedings to continue in parallel could result in inconsistent outcomes and duplication of adjudicatory effort on the same set of facts and law. Learned counsel for the petitioner, Sri Suyash Agarwal, and learned counsel for the Revenue, Sri Krishna Agarwal, were heard at length before the Division Bench proceeded to record its short conclusion on the point of maintainability.

Issues Involved

  1. Whether the writ petition challenging the Order-In-Original passed under Section 122 of the CGST Act, 2017 should be entertained when a statutory appeal against the same order had already been filed.

Petitioner's Arguments

  • The petitioner sought to challenge the Order-In-Original dated 26.05.2023 passed under Section 122 of the CGST Act, 2017 through the writ jurisdiction of the High Court.

Respondent's Arguments

  • The Revenue's counsel pointed out that a statutory appeal against the impugned Order-In-Original was available to the petitioner under the CGST Act, and that the petitioner had already availed of that remedy.

Court Order/Findings

  • The Division Bench noted that it was undisputed that the petitioner had already filed a statutory appeal against the impugned Order-In-Original.
  • The Court held that once the statutory appellate remedy had already been availed, no dual remedy could be offered by simultaneously entertaining the writ petition.
  • The writ petition was dismissed on the ground of availability (and actual invocation) of the statutory remedy, leaving it open to the petitioner to press the pending statutory appeal.
  • The order was passed as a brief, one-page disposal, reflecting the settled and largely uncontroversial nature of the maintainability principle applied by the Bench.

Important Clarification

A writ petition challenging a GST adjudication order under Section 122 of the CGST Act will not be entertained where the petitioner has already availed the statutory appellate remedy against the very same order, since that would amount to pursuing dual, parallel remedies.

Sections Involved

  • Central Goods and Services Tax Act, 2017 — Section 122 (penalty for certain offences).
  • Central Goods and Services Tax Act, 2017 — statutory appeal provisions against orders of adjudicating authorities.

Decision – In Favour of

The decision favours the Department on the maintainability question, though without touching the merits of the underlying penalty order. The petitioner's remedy remains fully available through the statutory appeal already filed, so the substantive dispute stays open there.

Related Case Laws

No directly on-point case notes are currently published on this site.

Case Details

  • Court: High Court of Judicature at Allahabad
  • Case No.: WRIT TAX No. 942 of 2023
  • CNR: 2023:AHC:210309-DB
  • Coram: Hon'ble Saumitra Dayal Singh, J. and Hon'ble Shiv Shanker Prasad, J.
  • Decision Date: 02.11.2023
  • Disposal Nature: Writ dismissed on ground of availability of statutory appeal

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