TaxTMI 
TaxTMI 
2024 (8) TMI 381
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....f 3 months after the setting up of GST Tribunal under Section 110 of the relevant GST Acts; c) A writ/s of, order/s, direction/s in the nature of Prohibition restraining the respondents from realizing any amount pursuant to the order of appeal dated April 23, 2024 that of the adjudication date June 22, 2023 and/or any notices of demand arising thereof till 3 months from the setting up of GST Tribunal under Section 110 of the relevant GST Acts; d) An interim order restraining the respondents from realizing any amount pursuant to the order of appeal dated April 23, 2024 that of the adjudication dates June 22, 2023 and/or any notices of demand arising therefrom till the disposal of the instant; e) An order of injunction restraining the Respondents and each of them and/or their men and agents from taking any coercive action again the petitioner during the pendency of the instant application and/or any other action that may make this application futile and/or infructuous, till the disposal of the instant application; f) Costs of and incidental to this application be paid by the Respondents; and g) Such further or other order or orders be made and/or direction or direction....
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....Court within its bounds as such the exercise of such power is supervisory in character. In cases where a tribunal exceeds its jurisdiction or tribunal exercises jurisdiction in matters in which the tribunal does not have the jurisdiction, the Court may, in a fit case, issue necessary writ in the nature of prohibition, thereby, forbidding a tribunal from proceeding in excess of its jurisdiction. But a writ of prohibition does not lie to correct the course, practice or procedure of any inferior tribunal or a wrong decision on the merits of the proceeding. In support of his aforesaid contention, he has placed reliance on a judgment delivered by the Hon'ble Supreme Court in the case of S. Govinda Menon v. Union of India & Anr., reported in AIR 1976 SC 1274. 6. By bringing out the distinction between the scope for issuance of writ of prohibition and the writ of certiorari he submits that a writ of prohibition is issued when the tribunal is yet to conclude its proceeding, however, once, the tribunal concludes its proceeding, ordinarily the Court can correct the jurisdictional error by exercising its jurisdiction to issue writ of certiorari. In support of his aforesaid contention, he ha....
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.... Pvt. Ltd. v. Union of India & Ors., in WP No. 10883 of 2019 reported in (2023) 111 GSTR 218 (Bom) (DB), had been pleased to dispose of the writ petition by directing that the orders impugned shall not be given effect, until two weeks after the period prescribed for filing an appeal as under Clause 4.3 of the Circular dated 18th March, 2020 is over. He has also placed reliance on the judgment delivered by the Hon'ble Division Bench of this Court in the case of India Tyre & Rubber Company India Ltd. & Anr. v. State of West Bengal & Ors. in MAT 2527 of 2023 on 6th February, 2024 as also judgment delivered in the case of Jai Venktesh Concast Private Limited & Anr. v. The Deputy Commissioner of State Tax, ITC Investigation Unit & Ors. in MAT 720 of 2023 on 12th May, 2023. In both the aforesaid cases, the Hon'ble Division Bench while admitting the appeal had been pleased to stay the recovery proceeding without imposing any pre-condition. 10. Having regard thereto, he submits that there is no fetter in exercise of jurisdiction by this Court. The judgment relied by the respondents are distinguishable on facts and no reliance ought to be placed on the same. The objection as to maintainabi....
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....f now, the prescribed time limit to make application to appellate tribunal will be counted from the date on which President or the State President enters office. The appellate authority while passing order may mention in the preamble that appeal may be made to the appellate tribunal whenever it is constituted within three months from the President or the State President enters office. Accordingly, it is advised that the appellate authorities may dispose all pending appeals expeditiously without waiting for the constitution of the appellate tribunal." 14. From the above, it would be apparent and clear that the right of the petitioner to maintain an appeal under Section 112 of the said Act has been kept intact, at least, till such time the tribunal is constituted. I find that Mr. Bhattacharyya by citing the above Notification and the judgment delivered by the Hon'ble Division Bench of the Bombay High Court in the case of Rochem India Pvt. Ltd. (supra), has tried to impress upon this Court that unless, the time to file the appeal before the appellate tribunal expires the orders which are appealable before the tribunal ought not to be enforced. 15. It, however, appears from the judg....
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....cess of its jurisdiction". 17. From the above, it would transpire that ordinarily a writ of prohibition is issued for exercising supervisory jurisdiction with an object to restrain courts or inferior tribunal from exercising a jurisdiction which they do not possess at all or to prevent them from exceeding the limits of their jurisdiction. In other words, to keep such courts/tribunals within their bounds. 18. To emphasize the scope and jurisdiction as regards exercise of power to correct a final order passed by an inferior tribunal and the scope and exercise of jurisdiction to correct errors of jurisdiction committed by inferior courts and Tribunals, the learned Government pleader has placed reliance in the case of General Manager, Electrical Rengali Hydro Electric Project, Orissa & Ors. (supra). It appears that the Hon'ble Supreme Court after consideration of several authorities on the subject, including the case of Yakub v. K. S. Radhakrishnan, reported in AIR 1964 SC 477, had categorically identified the jurisdiction to issue a writ of certiorari and a writ of prohibition, and it is in that context the Hon'ble Supreme Court in paragraph 28 thereof was, inter alia, pleased to o....
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.... 1970 SC 1334 : (1969) 2 SCR 976] )." 19. Having regard to the same, it would be explicitly clear that though, both the writ of certiorari and prohibition may be issued for correcting errors of jurisdiction, however, a writ of certiorari is intended to correct a jurisdictional excess once, a decision is rendered, on the other hand a writ of prohibition could be issued while the Tribunal or Authority is yet to conclude the proceeding. Having regard thereto, it becomes explicitly clear that in the given facts wherein a determination has already been made by the appellate authority under Section 107 of the said Act, there may be little scope for exercise of jurisdiction by issuance of writ in the nature of prohibition. 20. Although, the matter may have rested here, however, as the petitioner contends that though its right to appeal is kept intact, yet by reasons of non-constitution of the tribunal, it has been prevented from preferring the appeal, this Court has proceeded to consider whether in the facts of the case grant of interim relief is permissible. On the issue that no writ should be issued only for the purpose of granting interim relief, reliance has been placed on the judg....