TaxTMI 
TaxTMI 
2026 (9) TMI 1494
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....imited company assigned with GSTIN 21AAFCP1820P2ZG being registered under the Central Goods and Services Tax Act, 2017/the Odisha Goods and Services Tax Act, 2017 (Collectively, "the GST Act"), undertakes execution of works contract. The petitioner having disclosed amount of input tax credit availed on the basis of original tax invoices, filed returns in GSTR-3B. A show-cause notice dated 30th March, 2022 purported to be under Section 74 of the GST Act covering multiple financial years 2017-18, 2018-19 and 2019-20 was issued by the Joint Director, DGGI, Bhubaneswar Zonal Unit-opposite party no.2 upon receipt of intelligence report showing non-filing of returns in Form GSTR-3B and Form GSTR-1 being admitted in course of enquiry. 3.1. The adjudicating authority-Additional Commissioner, GST and Central Excise, Bhubaneswar Commissionerate proceeded with the process of determination on the basis of intelligence so received and taking note of reply of the petitioner to the show cause notice, the authority inter alia came to observe that a time-limit has been prescribed for claiming input tax credit under Section 16(4) read with Section 39 of the GST Act and, accordingly quantified exc....
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....unsel appearing for the Department-opposite parties. 8. Perused the record. 9. On perusal of record relating to writ petition, viz., W.P.(C) No.29985 of 2025, it is apparent that the petitioner had challenged the ex parte impugned order dated 27th September, 2024 passed by the Additional Commissioner (Adjudicating Authority) GST and Central Excise, Bhubaneswar (opposite party no.1 therein). 9.1. The prayer of the petitioner in the said writ petition runs thus: "The petitioner therefore prays that in view of the above facts and circumstances the Petitioner most respectfully prays that this Hon'ble Court may be pleased to: A. Admit this writ petition, issue notices to the 0pp. Parties to show cause as to why ex-parte impugned orders under Annexure-2 shall not be quashed; And if the said 0pp. Parties show no cause and/or show insufficient cause quash/ set aside the ex-parte impugned order dated 27.9.2024 (Annexure-3) of the Additional Commissioner (Adjudicating Authority) COST, Bhubaneswar Opposite Party No-1, whereby an illegal demand against the petitioner under Section 74(9); further demand of ineligible ITC; penalty under Section 122(2)(b) along with....
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....f sum of Rs. 3,49,85,668.00/- (Rupees Three Crores forty nine lakhs eighty five thousand six hundred and sixty eight only) and sum of Rs. 7,66,998.00/- (Rupees Seven lakhs Sixty Six Thousand Nine Hundred and Ninety Eight only) which has been deducted illegally as recovery against demand without intimation as penalty from the GST Cash ledger of the petitioner. C. And/Or pass such other writ(s), direction(s) order (s) that this Hon'ble Court deems fit and proper in the present facts and circumstances of the case in the interests of justice and equity. D. And/Or for this Act of Kindness the petitioner shall in duty bound ever pray." The petitioner in course of hearing of said writ petition, having sought for permission to withdraw, this Court disposed of said writ petition with the following order on 14th May, 2026: "1. Learned counsel appearing for the petitioner seeks permission to withdraw the instant writ petition with liberty to file a better petition. A memo filed to that effect is taken on record. 2. The writ petition is, accordingly, dismissed as withdrawn with the liberty as sought for." 9.3. The present writ petition is filed for....
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....dia without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao and others Vs. the State of U.P. and others, (1962) 2 SCR 575 is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interest of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the....
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.... Article 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Article 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; bu....
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....lated to the non-joinder of all affected parties to the litigation. We are quite satisfied that even if some individual affected parties have not been impleaded before us, their interests are identical with those and have been sufficiently and well represented. Further, the relief claimed in Writ Petitions Nos. 3420-3426 of 1983 etc. is of a general nature and claimed against the State and no particular relief is claimed against any individual party. We do not think that the mere failure to implead all affected parties is a bar to the maintainability of the present petitions in the special circumstances of these cases where the actions are really between two "warring groups?.' 9. This is again in respect of the proceedings initiated before the Supreme Court under Article 32 of the Constitution wherein another writ petition was filed before the Supreme Court after dismissal of the first writ petition in limine. 10. Section 141 of the Civil Procedure Code was amended vide Central Act No. 104 of 1976 wherein explanation was added to mean that the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the....
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....would not prevent him from withdrawing his petition. But if such withdrawal is without the leave of the Court, it would mean that the petitioner is not interested in prosecuting or continuing the proceedings and he abandons his claim. In such cases, obviously, public policy requires that he should not start a fresh round of litigation and the Court will not allow him to reagitate the claim which he himself had given up earlier.' 12. A Division Bench of this Court in a judgment reported as The State of Bihar Vs. Shri Ramesh Prasad, 2014 SCC OnLine Pat 7263 considered the Puran Singh's case (supra) and held that the provisions of Civil Procedure Code cannot per se apply to writ proceedings although certain principles enunciated therein have to be applied in writ proceedings from time to time. It was held that there cannot be any automatic application of the provisions of the Civil Procedure Code in the matter of writ petitions or writ appeals. The Court observed as under: 'Section 141 of the Civil Procedure Code clearly lays down that the procedure provided in the said Code is to be followed in regard to suits and are to be made applicable in all proceedings in ....
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....drawal of the earlier writ petition would bar the second petition on the same cause of action not in terms of Order XXIII, Rule 1 of the Civil Procedure Code but in terms of public policy of not permitting the litigants to come to the Court time and again on the basis of same cause of action." 9.7. With the aforesaid delineated legal perspective in hand, it is matter of record that the writ petition, being W.P.(C) No.29985 of 2025, was withdrawn by the petitioner without seeking liberty to file fresh petition. Minute excursion into the facts of said writ petition it could be ascertained by visiting portal of this Court that said writ petition was filed on 26.09.2025. The assailed Order-in-Original therein was passed on 27.09.2024. The petitioner has alternative remedy to question the limitation as to the passing of the Order-in-Original and other legal grounds. It is requirement under Section 107(1) of the GST Act to file appeal within three months from the date on which the said decision or order is communicated to such person/petitioner. However, discretion is vested with the Appellate Authority under sub-section (4) thereof to condone the delay on showing sufficient cause whi....
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....a statement of a case to this Court, as provided in Section 24 of the Act. If on the other hand the petitioner's statement to the effect that he received a copy of the Collector's order only on the 4th October, 1957 be taken as correct, then as soon as the Orissa Legislature passed Act XXVI ot 1958 and conferred on him the right to appeal to the Sales Tax Tribunal against the order of the Collector he should have need a regular appeal to the Tribunal. When the Legislature stepped in, at a time when this application was pending in this Court and conferred on the aggrieved party a regular right of appeal before the independent Judicial Tribunal, the party should be directed to seek his redress before that Tribunal and should not be permitted to invoke the extraordinary jurisdiction of this Court under Article 226. The powers of this Court under that Article are limited whereas the powers of the Tribunal as an appellate authority are co-extensive with those of the lower authorities. It can investigate facts and come to its own independent findings." 9.8. Glossing through the writ petition, it is perceived that the petitioner has not explained the delay in approaching this C....