High Court not to entertain writ petition when alternative remedy of appeal is available [Read Judgement]

The Andhra Pradesh High Court in the matter of SMT GALI LAVANYA Vs. The state of Andhra Pradesh has stated that the High Court will not entertain a writ petition when an alternative remedy of appeal is available.

The petitioner’s grievance is that she is the owner of Godown No.02, having a total capacity of 10000 Mts situated at M/s Jagadish & Others Warehouses, Bhanuprakash Nagar, Sitarampet Village, Yerpedu Mandal, Chittoor District. The said godown was used to provide services of storage and warehousing to clients such as Andhra Pradesh State Civil Supplies Corporation Ltd (APSCSCL). The petitioner received monitory consideration as per the agreement for the period between 2017 and 2021 a sum of Rs.3,59,70,000. Later the Regional Vigilance and Enforcement Officer inspected his warehouse and thereafter a show cause notice was issued to the petitioner on 04.02.2022 stating that the services provided by the petitioner amount to renting of immovable property and therefore the same is not exempted from tax. The petitioner filed objections contending that the services of storage and warehousing of food grains are exempted from the levy of tax as per Notification No.12/2017 – Central Tax (Rate), dated 28.06.2017. The activity undertaken by the petitioner is that it had entered into an agreement with APSCSCL for providing storage, and warehousing services involving loading, unloading, stacking, packing, care, custody and security etc., of food grains and the activity of storage or warehousing of rice is specifically covered under entries prescribed in Sl. No.24 and also under Sl. No.3 or Sl. No.54 of Notification No.12/2017-Central Tax (Rate), dated 28.06.2017 and it is exempted from payment of tax.

However, without considering the reply of the petitioner in the proper manner, the 2nd respondent held that the petitioner has let out 10000 Mts of space on a monthly rental basis and delivered possession and therefore the said activity attracts tax @ 9% under SGST and CGST as prescribed in Entry No.997212 and disagreed with the contention of the petitioner that the services rendered by the petitioner are exempted under Notification No12/2017 – Central Tax (Rate), dated 28.06.2017.

It is the case of the petitioner that under Notification No.12/2017, all the services related to supplies like loading, unloading, storage or warehousing including those of renting and leasing is exempted from tax if such supplies are made to the Government or Government Authority. The APSCSCL is apparently a Government Authority as the Government holds more than 90% of equity shares and therefore, the transaction is exempted from tax.

The 2nd respondent not file a counter. Learned Government Pleader submitted that he filed counter in similar connected Writ Petition No.21055 of 2023 and since the factual and legal aspects in both the matters are same, the counter averments in W.P.No.21055/2023 may be considered in the present writ petition also.

An anxious consideration was given to the above respective submissions, particularly the preliminary objection of the learned Government Pleader regarding the entertainability of the writ petition. Admittedly, the petitioner has an efficacious and alternative remedy to file an appeal. The said fact is also mentioned in the impugned order to the effect that an appeal lies against the impugned order before the Appellate Joint Commissioner (ST), Tirupathi.

In that view of the matter and also in view of the decision in Assistant Commissioner (CT), Kakinada vs. Glaxo Smith Kline Consumer Health Care Ltd’s case (Supra 1) wherein the Hon’ble Apex Court held that the High Court ought not to have entertained the writ petition when an efficacious and alternative remedy of appeal is available to the petitioner, without expressing our opinion on the merits of the petitioner’s case, we deem it apposite to give liberty to the petitioner to file an appeal against the impugned order.

Accordingly, the writ petition is disposed of giving liberty to the petitioner to file an appeal against the impugned order dated 10.07.2023 passed by the 2nd respondent before the concerned Appellate Authority within four (4) weeks from the date of receipt of a copy of this order, in which case, the Appellate Authority shall admit the appeal and after affording an opportunity of hearing to both parties, pass an appropriate order on merits in accordance with governing law and rules expeditiously. Till the time granted for the filing of an appeal is over, the respondent authorities shall not take any coercive action against the petitioner for recovery of the demanded tax under the impugned order.

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