Bibhuti Bhushan Singh S/o-Late Tirth Nath Singh v. Union of India, through Chairman, Central Board of Indirect Taxes, Department of Revenue, Ministry of Finance
2026-01-13
M S Sonak, Sujit Narayan Prasad
body2026
DailyLaw.ai
JUDGMENT : 1. Heard learned counsel for the parties. 2. The challenge in this petition is to the Order-in-Original dated 31.10.2023 conforming the demand of Rs. 4,89,582/- along with interest, penalty, etc. 3. Learned counsel for the petitioner, on the earlier date, had submitted that this Order-in-Original was never served upon the petitioner. Therefore, we had deferred the hearing in this matter to enable the learned counsel for the respondents to obtain instructions. 4. Mr. P.A.S. Pati, learned counsel for the respondents, on instructions, submitted that although the Order-in-Original was dispatched to the petitioner at the address where the show-cause notice was served, the records show that it was returned unserved. He further stated that if the limitation for filing an appeal against the Order-in-Original is an issue, the petitioner would be granted reasonable time to institute the appeal so that the appeal could be decided on the merits without going into the issue of limitation. 5. Mr. P.P.N. Roy, the learned senior counsel appearing on behalf of the petitioner, however, submitted that this was not a fit case to relegate the petitioner to the alternative remedy of appeal. He pointed out that the impugned order was ex facie without jurisdiction because the issuance of the show-cause notice was barred by limitation; the order was made beyond the prescribed period; and the services rendered by the petitioner were clearly exempted under the 2012 notification. He further submitted that an appeal may not be an efficacious remedy because the petitioner would, when instituting the appeal, be required to deposit 7.5 per cent of the tax demand as a precondition. 6. Mr. Roy relied on the Committee of Management and Another Vrs. Vice-Chancellor and Others , (2009) 2 Supreme Court Cases 630 in support of his contention that where an order has been passed by an authority without jurisdiction or in violation of the principles of natural justice, the superior courts shall not refuse to exercise their jurisdiction, although there exists an alternate remedy. 7. Mr Pati, learned counsel for the respondents, submitted that, in this case, the extended period of limitation was invoked, there was no delay in passing the impugned order, and, furthermore, no taxes were levied on the exempted services. 8.
7. Mr Pati, learned counsel for the respondents, submitted that, in this case, the extended period of limitation was invoked, there was no delay in passing the impugned order, and, furthermore, no taxes were levied on the exempted services. 8. Although the mere existence of an alternate remedy can never be a bar to this Court exercising its extraordinary jurisdiction under Article 226 of the Constitution, still, this is a self-imposed limitation that, when an alternate and efficacious statutory remedy is provided under the statute, ordinarily, the party must exhaust such remedy before invoking the extraordinary jurisdiction of this Court. 9. Insofar as the exceptions are concerned, we note that, in this matter, the issue of limitation would involve the adjudication of mixed questions of fact and law. Similarly, the issue of whether the services rendered by the petitioner fall within the exempted category would also require adjudication as a factual issue. 10. The matters above are best adjudicated by the specialised authorities constituted under the Act. No argument was made regarding any violation of natural justice. 11. The argument that the requirement of a pre-deposit of 7.5 per cent renders the statutory remedy less efficacious cannot be accepted. Apart from the fact that the demand for service tax in this case is only Rs. 4,89,582/-, this Court cannot be expected to ignore the statutory Scheme. 12. The Hon’ble Supreme Court has time and again held that whenever an alternate remedy is provided under the statute, it is only in exceptional circumstances that the same could be bypassed. Therefore, if the case of the impugned order or impugned action being entirely without jurisdiction or in breach of the principle of natural justice is not made out, there is no question of entertaining the writ petition by-passing the statutory remedies provided under the law. 13. In the case of The State of Maharashtra and Others Vs. Greatship (India) Limited , 2022 LiveLaw (SC) 784 , the Hon’ble Supreme Court, after referring to its earlier precedents on the subject, held that Article 226 is not meant to short-circuit or circumvent statutory procedures.
13. In the case of The State of Maharashtra and Others Vs. Greatship (India) Limited , 2022 LiveLaw (SC) 784 , the Hon’ble Supreme Court, after referring to its earlier precedents on the subject, held that Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, for instance, where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up, and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But even then, the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely, matters involving the revenue where statutory remedies are available are not such matters. The Court, after referring to its earlier precedent in United Bank of India V/s. Satyawati Tondon and Others , (2010) 8 SCC 110 observed that "we can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged". 14. In the case of Thansingh Nathmal Vs. Superintendent of Taxes, Dhubri and others , AIR 1964 SC 1419 , the Constitution Bench of the Hon’ble Supreme Court held that resorting to this jurisdiction is not intended as an alternative remedy for relief, which may be obtained in a suit or other mode prescribed by statute. Ordinarily, the Court will not entertain a petition for a writ under Art. 226, where the petitioner has an alternative remedy that provides an equally efficacious remedy without being unduly onerous. Again, the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not, therefore, act as a court of appeal against the decision of a court or tribunal to correct errors of fact and does not, by assuming jurisdiction under Article 226, trench upon an alternative remedy provided by statute for obtaining relief.
The High Court does not, therefore, act as a court of appeal against the decision of a court or tribunal to correct errors of fact and does not, by assuming jurisdiction under Article 226, trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit, by entertaining a petition under Article 226 of the Constitution, the machinery created under the stature to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. 15. In the case of Oberoi Constructions Ltd. Vrs. the Union of India & Ors., 2024 SSC OnLine Bom 3508, the Bombay High Court had the occasion to deal with similar issues concerning the by- passing of alternate remedies. By relying upon the reasoning in the said decision, as also the reasoning in the various precedents referred to, we are not inclined to entertain this petition. 16. Instead, we believe that the interests of justice would be best served by directing the petitioner to pursue the alternative remedies provided under the statute. 17. Since it is now admitted that the order which was dispatched to the petitioner was returned unserved, we direct if the petitioner institutes an appeal within six weeks from today, after complying with all prescribed pre-conditions, including the condition of pre-deposit, then the appellate authority must consider such appeal on merits without adverting to the issue of limitation. 18. All contentions of all parties on merits are left open because we have not adverted to that. 19. This writ petition is disposed of with liberty in the above terms. No costs. 20. All concerned must act on an authenticated copy of this order.