WRITS IN TAX LAWS.............

Any Aggrieved person can file an appeal or a writ petition against any impugned order or an appealable event before any High Court having jurisdiction over the matter or to the Supreme Court of India, under Sections 117 and 118 of CGST Act, 2017.

Therefore, aggrieved person who may be a taxpayer or a revenue authority may take the recourse before High Court / Supreme Court by way of writ petition or an appeal (civil, criminal, miscellaneous etc.)

Writ before Courts

Writs are generally preferred to address any urgent or any pertinent issue seeking an early direction or action from the court.

Appeals and Writs

In any tax law, there could be disputes in relation to various aspects such as:

• Constitutional issues
• Jurisdictional issues
• Law not clear/Interpretational issues
• Tax Disputes- rate/classification/valuation/ITC etc.
• Contravention of statutory provisions
• Imposition of penalties

What is an Appeal?

• Any appeal under any law is an application to a higher court for a reversal or modification the decision of a lower court. Appeals arise when there are any legal disputes.
• Disputes–owing to obligations under law:

• Tax related
• Procedural

What is a Writ?

• A formal order issued by a Court.
• Any order, warrant, direction, and so on, issued by the Supreme Court or High Court is called a Writ.
• Writ petition can be filed in the Supreme Court (Article 32 of the Constitution) and High Court (Article 226 of the Constitution) of India when fundamental rights are violated.
• High court (Article 226) can also be invoked for violation of any Constitutional right.

Types of Writs

Writs can be of following types:

• Habeas Corpus- To produce the body. Issued in case of illegal detention of a person.
• Mandamus- “we command” or “we order”. Issued by Court to a public authority or lower court to perform a public or statutory duty.

• Certiorari- Quash an order passed by an inferior court.
• Prohibition- Prohibit lower courts from doing an act against natural justice or outside their authority.
• Quo Warranto- To stop a person or restrain him from holding office that he has no authority to hold.

Important points to note in relation to Writs:

• Writs may be maintainable or non-maintainable.
• Writs may be admitted, disposed of with direction or dismissed
• Court cannot entertain a writ petition merely because petitioner is aggrieved with any order of authorities unless the order is shown to be either non-speaking/unreasoned or without jurisdiction or vitiated by non-observance of principles of natural justice or by fraud or actuated by mala fides.
• While a writ rules to address any pertinent issue by the High Court or Supreme Court on violation of any rights or seeking direction to any authority for prohibition, production, command, restraints, injunctions or quashing of any order, an appeal is to seek remedy against any impugned order by the aggrieved person.
• In case of appeal, there may be various appellate forums besides courts like Appellate Authority, Appellate Tribunal etc.
• A writ petition can be filed only before a court of law or Supreme Court.

Judicial View

Thus, while a writ rules to address any pertinent issue by the High Court or Supreme Court on violation of any rights or seeking direction to any authority for prohibition, production, command, restraints, injunctions or quashing of any order, an appeal is to seek remedy against any impugned order by the aggrieved person. In case of appeal, there may be various appellate forums besides courts like Appellate Authority, Appellate Tribunal etc. On the other hand, a writ petition can be filed only before a court of law or Supreme Court.

In Bharat Mint And Allied Chemicals Versus Commissioner Commercial Tax And 2 Others - 2022 (3) TMI 492 - ALLAHABAD HIGH COURT, the court observed that Article 226 of the Constitution of India confers very vide powers on High Courts to issue writs but this power is discretionary and the High Court may refuse to exercise the discretion if it is satisfied that the aggrieved person has adequate or suitable remedy elsewhere. It is a rule of discretion and not rule of compulsion or the rule of law. Even though there may be an alternative remedy, yet the High Court may entertain a writ petition depending upon facts of each case. It is neither possible nor desirable to lay down inflexible rule to be applied rigidly for entertaining a writ petition. Some exceptions to the rule of alternative remedy as settled by Supreme Court are as under:—

1. Where there is complete lack of jurisdiction in the officer or authority to take the action or to pass the order impugned.
2. Where vires of an Act, Rules, Notification or any of its provisions has been challenged.
3. Where an order prejudicial to the writ petitioner has been passed in total violation of principles of natural justice.
4. Where enforcement of any fundamental right is sought by the petitioner.
5. Where procedure required for decision has not been adopted.
6. Where Tax is levied without authority of law.
7. Where decision is an abuse of process of law.
8. Where palpable injustice shall be caused to the petitioner, if he is forced to adopt remedies under the statute for enforcement of any fundamental rights guaranteed under the Constitution of India.
9. Where a decision or policy decision has already been taken by the Government rendering the remedy of appeal to be an empty formality or futile attempt.
10. Where there is no factual dispute but merely a pure question of law or interpretation is involved.
11. Where show cause notice has been issued with preconceived or premeditated or closed mind.

The court relied on various judgments of Supreme Court in the case of Himmatlal Harilal Mehtav Versus The State Of Madhya Pradesh And Other - 1954 (3) TMI 84 - Supreme Court; AV. VENKATESWARAN, COLLECTOR OF CUSTOMS, BOMBAY Versus RAMCHAND SOBHRAJ WADHWANI AND ANOTHER - 1961 (4) TMI 83 - Supreme Court; COLLECTOR OF CUSTOMS AND EXCISE Versus AS BAVA- 1967 (7) TMI 61 - Supreme Court; DR. SMT. KUNTESH GUPTA Versus MANAGEMENT OF HINDU KANYA MAHAVIDYALAYA, SITAPUR (UP) &ORS. - 1987 (9) TMI 302 - Supreme Court  LK VERMA Versus H. MT LTD. & ANR. - 2006 (1) TMI 551 - Supreme Court;
M.P. STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION LTD & ANR Versus JAHAN KHAN - 2007 (9) TMI 609 - Supreme Court; M/s DHAMPUR SUGAR MILLS LTD Versus STATE OF U.P. & ORS - 2007 (9) TMI 620 - Supreme Court; BCPP Mazdoor Sangh & Anr Versus N.T.P.C. & Ors - 2007 (10) TMI 622 - Supreme Court; RAJASTHAN STATE ELECTRICITY BOARD Versus UNION OF INDIA & ORS. - 2008 (5) TMI 652 - Supreme Court; Mumtaz Post Graduate Degree College, Committee of Management & Anr. Versus University of Lucknow, Vice Chancellor & Ors. - 2008 (12) TMI 732 - Supreme Court;Godrej Sara Lee Ltd. Versus Asst. Commissioner (AA) and another - 2009 (3) TMI 554 - Supreme Court; UNION OF INDIA Versus MANGAL TEXTILE MILLS (I) PVT. LTD. - 2010 (2) TMI 699 - Supreme Court; Union of India & Other Versus Tantia Construction Pvt. Ltd. - 2011 (4) TMI 1276 - Supreme Court; The Executive Engineer & Anr. Versus M/s Sri Seetaram Rice Mill - 2011 (10) TMI 586 - Supreme Court; State of M.P. and Others Versus Sanjay Nagayach and Others - 2015 (8) TMI 1109 - Supreme Court; State of HP. and others Versus Gujarat Ambuja Cement Ltd. and another (and other appeals) - 2005 (7) TMI 353 - Supreme Court; Star Paper Mills Ltd. Versus State of UP. and others (and other appeals) - 2006 (9) TMI 277 - Supreme Court; State of Tripura Versus Manoranjan Chakraborty and Others- 2000 (11) TMI 1079 - Supreme Court; Paradip Port Turst Versus Sales Tax Officer, Cuttack and Others - 1998 (3) TMI 585 - Supreme Court; FELDOHF AUTO & GAS INDUSTRIES LTD. Versus UNION OF INDIA - 1991 (9) TMI 94 - SC Order; Isha Beevi And Other Versus Tax Recovery Officer And Others - 1975 (9) TMI 2 - Supreme Court; Whirlpool Corporation Versus Registrar of Trade Marks, Mumbai & Ors. - 1998 (10) TMI 510 - Supreme Court; Guruvayur Devaswom Managing Commit. & Anr. Versus CK. Rajan & Others - 2003 (8) TMI 470 - Supreme Court; ORYX FISHERIES PRIVATE LIMITED Versus UNION OF INDIA - 2010 (10) TMI 660 - Supreme Court; Mangilal Versus State Of M.P - 1994 (4) TMI 393 - Supreme Court; SIEMENS LTD. Versus STATE OF MAHARASHTRA - 2006 (12) TMI 203 - Supreme Court; Kaikhosrou (Chick) Kavasji Framji Versus Union of India (UOI) and Ors. - 2019 (3) TMI 1961 - Supreme Courtand judgments of this Court in Writ Tax No. 255 of 2012 (M/s Shree Bhawani Paper Mills Ltd., M/s Rama Shyama Papers Ltd., M/s Goels Coir Foam (India) Pvt. Ltd., M/s Camphor and Allied Products, M/s N.P. Agro (India) Industries Ltd., M/s Bholenath Industries Ltd. Versus State Of U.P. and Another - 2015 (11) TMI 48 - ALLAHABAD HIGH COURT), RAPTI COMMISSIONS AGENCY Versus UNION OF INDIA - 2009 (10) TMI 105 - ALLAHABAD HIGH COURT and Oudh Sugar Mill Versus State of U.P. - 2014 (11) TMI 1256 - ALLAHABAD HIGH COURT. It was therefore, held that existence of alternative remedy is not a bar in exercising writ jurisdiction in exceptional circumstances, including, inter alia, violation of natural justice.

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