ALFA SHOPPING Vs. ASSISTANT COMMISSIONER

JUDGEMENT

(1.) By the impugned Order, dtd. 4/12/2020, a learned Single Judge dismissed the Petition relying on a Judgment of the Apex Court in Assistant Commissioner (CT) LTU, Kakinada v. Glaxo Smith Kline Consumer Health Care Limited, 2021 (1) CTC 844 (SC) : 2020 (77) GSTR 342 (SC) : 2020 (36) STL 305. According to the learned Single Judge, because the Apex Court in Glaxo Smith Kline Consumer Health Care Limited (for short, 'Glaxo Smith Kline') has held that the High Court in exercise of powers under Article 226 of the Constitution of India ought not to have entertained Writ Petition assailing the Order passed by a Statutory Authority, which was not appealed against within the maximum period of limitation before the concerned Appellate Authority, the Petition cannot be entertained.

(2.) We would not take the same view as taken by the learned Single Judge. We say this because in Glaxo Smith Kline (supra), the Apex Court, after referring to the decision of the Constitution Bench in the case of Thansingh Nathmal v. Superintendent of Taxes, Dhubri, AIR 1964 SC 1419 only held that although power of the High Court under Article 226 of the Constitution is very wide, the Court must exercise self-imposed restraint and not entertain the Writ Petition. The Apex Court also observed that the High Court may non-Suit the party on the ground that alternative efficacious remedy is available. We find support for this view in a Judgment of a Co-ordinate Bench of this Court in the case of Mahindra & Mahindra Limited v. Joint Commissioner (CT) Appeals, Chennai and another, 2021 SCC OnLine Mad 16548 where Paragraphs 4 to 9 read as under:

(3.) Moreover, in Paragraph 15 of Glaxo Smith Kline (supra), it says: