ORDER

The petitioner herein is aggrieved by the order dated 03.07.2020 passed by the Assistant Commissioner, Mobile Squad, Mughal Sarai, Chandauli. The order demands the tax liability of the petitioner and also imposes a penalty.

The submission of learned counsel for the petitioner is that the order is beyond jurisdiction, inasmuch as, the proceedings are culminated in the impunged order dated 03.07.2020, arose out of Section 129 of the U.P. Goods and Services Tax Act, 2017.

The submission is that the authority has exceeded its jurisdiction, inasmuch as, tax liability cannot be determined in proceedings taken under Section 129 of the G.S.T. Act.

He further submits that a show-cause notice for fixation of tax liability was issued to the petitioner on 04.06.2020. The petitioner refuting the contents of the notice and also his liability contemplated under the aforesaid notice, submitted a reply on 19.06.2020.

It is contended that the aforesaid reply has not been considered while passing the impugned order of determination of liability.

Lastly, the contention is that the penalty can only be imposed, in the facts of this case, under Section 122 of the G.S.T. Act and no such proceedings has been taken up.

Having heard the learned counsel for the petitioner and perused the order, we find that the pith and substance of the order impugned is in the nature of an order assessing the tax liability of the petitioner and determining the consequent penalty. All other arguments are in the nature of grounds, on the foot of which challenge may be laid to the impugned order. We do not propose to go into the merits of the submissions, at this stage, since an alternative and efficacious remedy is available to the petitioner under Section 107 of the G.S.T. Act.

The said provision is extracted hereinunder for ease of reference:-

“107. (1) Any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person.

(2) The Commissioner may, on his own motion, or upon request from the Commissioner of State tax or the Commissioner of Union territory tax, call for and examine the record of any proceedings in which an adjudicating authority has passed any decision or order under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, for the purpose of satisfying himself as to the legality or propriety of the said decision or order and may, by order, direct any officer subordinate to him to apply to the Appellate Authority within six months from the date of communication of the said decision or order for the determination of such points arising out of the said decision or order as may be specified by the Commissioner in his order.

(3) Where, in pursuance of an order under sub-section (2), the authorised officer makes an application to the Appellate Authority, such application shall be dealt with by the Appellate Authority as if it were an appeal made against the decision or order of the adjudicating authority and such authorised officer were an appellant and the provisions of this Act relating to appeals shall apply to such application.

(4) The Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or six months, as the case may be, allow it to be presented within a further period of one month.

(5) Every appeal under this section shall be in such form and shall be verified in such manner as may be prescribed.

(6) No appeal shall be filed under sub-section (1), unless the appellant has paid-

(a) in full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him; and

(b) a sum equal to ten per cent. of the remaining amount of tax in dispute arising from the said order, [subject to a maximum of twenty of twenty-five crore rupees,] in relation to which the appeal has been filed.

(7) Where the appellant has paid the amount under subsection (6), the recovery proceedings for the balance amount shall be deemed to be stayed.

(8) The Appellate Authority shall give an opportunity to the appellant of being heard.

(9) The Appellate Authority may, if sufficient cause is shown at any stage of hearing of an appeal, grant time to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.

(10) The Appellate Authority may, at the time of hearing of an appeal, allow an appellant to add any ground of appeal not specified in the grounds of appeal, if it is satisfied that the omission of that ground from the grounds of appeal was not wilful or unreasonable.

(11) The Appellate Authority shall, after making such further inquiry as may be necessary, pass such order, as it thinks just and proper, confirming, modifying or annulling the decision or order appealed against but shall not refer the case back to the adjudicating authority that passed the said decision or order:

Provided that an order enhancing any fee or penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund or input tax credit shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order:

Provided further that where the Appellate Authority is of the opinion that any tax has not been paid or short-paid or erroneously refunded, or where input tax credit has been wrongly availed or utilised, no order requiring the appellant to pay such tax or input tax credit shall be passed unless the appellant is given notice to show cause against the proposed order and the order is passed within the time limit specified under section 73 or section 74.

(12) The order of the Appellate Authority disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for such decision.

(13) The Appellate Authority shall, where it is possible to do so, hear and decide every appeal within a period of one year from the date on which it is filed:

Provided that where the issuance of order is stayed by an order of a court or Tribunal, the period of such stay shall be excluded in computing the period of one year.

(14) On disposal of the appeal, the Appellate Authority shall communicate the order passed by it to the appellant, respondent and to the adjudicating authority.

(15) A copy of the order passed by the Appellate Authority shall also be sent to the jurisdictional Commissioner or the authority designated by him in this behalf and the jurisdictional Commissioner of State tax or Commissioner of Union Territory Tax or an authority designated by him in this behalf.

(16) Every order passed under this section shall, subject to the provisions of section 108 or section 113 or section 117 or section 118 be final and binding on the parties.”

A perusal thereof reveals that the legislature has implied words wide enough which include all the objections which had been made at the bar.

In such view of matter, the writ petition is dismissed on the ground of alternative remedy.

However, it is open for the petitioner to raise all the objections before the appellate authority. In case, the demand is being pressed by the revenue with the essence of urgency, the appellant may make an application before the appellate authority. We have no doubt that the appellate authority shall decide such application expeditiously in accordance with law.

Learned counsel for the petitioner lastly states that the petitioner undertakes to file an appeal before the competent authority within a period of two weeks. In case such an appeal is filed within the aforesaid period along with the copy of this order, the appellate authority shall decide the appeal as well as the stay application on merits without going into the question of delay.

With the aforesaid observations, the present petition is dismissed.