Heard Sri Aloke Kumar, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

This writ petition has been filed to quash the order dated 15.07.2021 passed by the respondent no.3 under Section 73 of CGST/UPGST Act, 2017 for the Assessment Year 2017-18 (July, 2017 to March, 2018) and 2019-2020.

In paragraph nos. 32 and 34 of the counter affidavit, the respondents have stated as under:-

32. That subsequently, after examining and verifying the same from the information received by the office of Principal Commissioner of GST, Delhi, physical movement of the goods in the transaction in question could not be verified. Moreover, on perusing the GSTR-2A of M/s Star Metal and other Delhi State firms and GSTR-3B of its predecessor firms, tax deposition was not showing at any level. Thus, in view of the aforesaid factum and scenario, the assessing authority concluded that the ITC availed by the petitioner on the basis the fake and sham supply of goods from M/s Star Metal and other firms through the fake invoices issued by the firms to be invalid and unjust in the light of Section 16 of GST Act and also information pertaining to bogus tax invoices and thus, in this view matter passed the order dated 15.07.2021 under Section 73 of U.P. GST Act for A.Y. 2017-18, 2018-19 and 2019-2020.

34. That the contents of Paragraph nos. 47 & 48 of the writ petition are not admitted, as stated, hence denied. In reply thereto, it is submitted that the present writ petition also suffers from the vice of non-invocation of alternative remedy because under Section 107 there was an alternative remedy available for the petitioner to ventilate his grievance by filing first appeal before the first appellate authority but instead of filing appeal, he opted to file the present writ petition directly without invoking the alternative remedy, hence the present also deserves to be dismissed on the ground of Court, alternative remedy as the proper course of action required to be undertaken on the part of petitioner to file first appeal in the matter.

The allegation as aforementioned has been disputed by the petitioner. Since the disputed question of fact is involved, therefore, the petitioner is delegated to avail remedy of Appeal under Section 107 of the Act.

For all the reasons aforestated and without expressing any opinion on merits of the case of the petitioner, the writ petition is dismissed on the ground of alternative remedy, leaving it open for the petitioner to file appeal before the appellate authority. Since the writ petition is pending before this Court since 2021, therefore, we direct that in the event petitioner files appeal against the impugned order before the appellate authority under Section 107 of the Act within three weeks then appeal shall be entertained by the appellate authority in accordance with law, without raising any objection as to the limitation.