Heard Sri S.Ravi, learned Senior Counsel representing Sri Bhaskar Reddy Vemireddy, learned counsel for the petitioner, Sri T.C.Dhana Sekhar, learned Government Pleader for Commercial Tax for respondent Nos.1 to 3, Sri N.Harinath, learned Assistant Solicitor General for 4th respondent, Sri Metta Chandrasekhara Rao, learned Counsel for 5th respondent and Sri Y.Nagi Reddy, learned counsel for 6th respondent.
2. In the present writ petition, challenge is to the order passed by the Assistant Commissioner (ST), Lalapet Circle, Guntur-1st respondent herein in Case No.04(a)/2019(FY:2017-18). According to the petitioner, it is a Company and engaged in the business of manufacture and sale of solar power systems and is a registered dealer under the APVAT Act, 2015 and has got migrated itself to GST and it is a registered person, in terms of Section 2(94) of the Central Goods and Services Tax Act,2017 ( for brevity “the Act”).
3. The 1st respondent herein issued a show cause notice, dated 26-10-2020, calling upon the petitioner to show cause. In response to the same, on 17-11-2020 the petitioner herein submitted an explanation. Eventually, the 1st respondent herein, vide the impugned order, dated 07-12-2020, asked the petitioner to pay an amount of ₹ 2,49,02,589/- towards tax, penalty and interest within 30 days from the date of communication of the said order according to Section 73 of the Act. The present writ petition challenges the validity and legal sustainability of the said order, dated 07-12-2020.
4. It is contended by Sri S.Ravi, learned Senior Counsel representing the counsel for the petitioner that the order impugned in the present writ petition is erroneous, contrary to law and opposed to the very spirit and object of the provisions of the Act. In elaboration, it is further contended by the learned Senior Counsel that the impugned order is totally one without jurisdiction and is also violative of principles of natural justice; that the 1st respondent grossly erred in construing the transactions as ‘works contract’ relating to immovable property in contravention of the settled law; that the transactions in question are composite supply of goods and services referable to Section 2(30) read with Section 8(1) of the Act and are taxable at 5% up to 31-12-2018 and at 8.9% at the ratio of 70%, @ 5% and 30% @ 18% with effect from 01-01-2019; that the 1st respondent grossly erred in levying higher rate of tax without property verifying the record on the turnover of branch transfers and sales made to other parties; that the impugned action is also contrary to advance rulings of the various States and as such cannot be sustained in the eye of law.
5. On the contrary, it is strenuously contended by Sri T.C.D.Sekhar, learned Government Pleader for Commercial Tax, appearing for the respondent Nos.1 to 3 that having regard to the provisions of Section 107 of the Act, the present writ petition, filed under Article 226 of the Constitution of India, is not maintainable. In elaboration, it is further contended that as against the order, impugned in the present writ petition, statutory appeal lies before the Commissioner and without availing the same, the present writ petition is filed before this Court. It is also the submission of the learned Government Pleader that in view of the involvement of various factual controversies, which cannot be verified by this Court under Article 226 of the Constitution of India, the present writ petition is liable to be dismissed. It is further submitted that as per the provisions of Section 113(6) of the Act, the orders passed by the Tribunal are binding only on the parties.
6. It is absolutely not in controversy that Section 107 of the Act provides for remedy of appeal to the appellate authority against the orders passed by the 1st respondent. Sub-sections 1 to 16 of the Section 107 of the Act, read as under:-
107. Appeals to Appellate Authority.-(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 authorized 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 authorized 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, 1[subject to a maximum of twenty-five crore rupees,] 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, in relation to which the appeal has been filed.
(7) Where the appellant has paid the amount under sub-section (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 utilized, 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.
7. It is evident from a reading of the above provision of law that the present impugned order is assailable before the appellate authority. It is submitted by the learned Government Pleader for Commercial Tax that the Joint Commissioner is the appellate authority constituted under the above said provision of law. In view of the above provision of law, this court is not inclined to entertain the present writ petition under Article 226 of the Constitution of India and this court also does not propose to express any opinion on the merits of the matter as this court is relegating the petitioner to an alternative remedy of appeal. It is also submitted by the learned Government Pleader that according to Sub-section (1) of Section 107 of the Act, the appeal needs to be filed within three (3) months from the date of the order.
For the aforesaid reasons, the writ petition is disposed of, at the stage of admission, leaving it open for the petitioner herein to avail the statutory remedy of appeal under Section 107 of the Act. It is also made clear that till expiry of period of limitation for filing the appeal against the order impugned in the present writ petition before the appellate authority, the respondents shall not take any coercive action pursuant to the impugned order. No order as to costs.
Miscellaneous Applications pending, if any, shall stand closed in consequence.