Petition under Article 227 maintainable despite non-constitution of appellate tribunal under Section 109

HP HC held that a petition under Article 227 was maintainable despite non-constitution of appellate tribunal under Section 109 of the Act. The court rejected the Additional Advocate General's argument that the petition was not maintainable, ruling that petitioner had no alternative remedy since the appellate tribunal was yet to be constituted. Following the principle that no person can be rendered remediless and citing precedent from Bombay HC in similar circumstances, the court exercised supervisory jurisdiction over quasi-judicial authorities. The petition was allowed with merit.

---

---

Issues Involved:
1. Non-constitution of the Appellate Tribunal under Section 109 of the Himachal Pradesh Goods and Services Tax Act, 2017.
2. Maintainability of the petition under Article 227 of the Constitution of India.
3. Interim relief sought by the petitioner.

Summary:

Issue 1: Non-constitution of the Appellate Tribunal
The petitioner approached the High Court due to the absence of an Appellate Tribunal, which is mandated under Section 109 of the Himachal Pradesh Goods and Services Tax Act, 2017. The petitioner sought to challenge the order dated 19.5.2023, passed by the Commissioner (Appeals) HP Goods and Service Tax-cum-Divisional Commissioner, Shimla Division, which dismissed the appeal against the order dated 30.8.2022, passed by the Joint Commissioner of State Taxes and Excise, Central Enforcement Zone, Una. The petitioner argued that due to the non-constitution of the Appellate Tribunal, there was no effective remedy available.

Issue 2: Maintainability of the petition under Article 227
The learned Additional Advocate General opposed the petition, arguing that it was not maintainable under Article 227 of the Constitution of India since a specific remedy was provided under the Act itself. However, the petitioner contended that in the absence of the Appellate Tribunal, the only available remedy was to file the petition under Article 227, which empowers the High Court to exercise supervisory jurisdiction over subordinate courts and quasi-judicial authorities. The court noted that the Ministry of Finance, Government of India, had issued orders and circulars to address the issue of the non-constitution of the Appellate Tribunal, extending the period for filing appeals until the tribunal becomes functional.

Issue 3: Interim relief sought by the petitioner
The petitioner sought a direction to the respondent not to act in furtherance of the order dated 19.5.2023, until the Appellate Tribunal is constituted and the appeal is filed within the prescribed period. The court found merit in the petition, referring to similar cases, including the judgment of the High Court of Bombay in Rochem India Pvt. Ltd. v. The Union of India and Ors., where the court had granted interim protection due to the non-constitution of the Appellate Tribunal. The court directed the respondent not to act on the order dated 19.5.2023, until the Appellate Tribunal is constituted and the petitioner files an appeal within the prescribed period as detailed in the circular dated 3.12.2019 issued by the Ministry of Finance, Government of India.

Conclusion:
The petition was allowed, directing the respondent not to act on the impugned order until the Appellate Tribunal is constituted and the appeal is filed within the extended period.

---