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2022 (12) TMI 411 - HC - GSTRefund of GST paid on notice pay received from the erstwhile employees - non-constitution of GST Appellate Tribunal - It is the case of the petitioner that since the GST Appellate Tribunal has not been constituted, the petitioner has no other remedy other than to approach this Court under Article 226 of the Constitution of India - HELD THAT:- The petitioner is entitled to succeed. The terms of Ext.P8 Circular specifically deal with the question arising for consideration in this case. The relevant portion of the Circular, which has been extracted hereinabove, clarifies that the amount of money received by the petitioner as notice pay from erstwhile employees is not a taxable transaction for the purposes of the GST laws. As rightly contended by the learned senior counsel, the decisions of the Supreme Court in NAVNIT LAL C. JAVERI VERSUS KK. SEN, APPELLATE ASSISTANT COMMISSIONER OF INCOME-TAX, BOMBAY [1964 (10) TMI 16 - SUPREME COURT] which was applied and followed in KP VARGHESE VERSUS INCOME-TAX OFFICER, ERNAKULAM, AND ANOTHER [1981 (9) TMI 1 - SUPREME COURT] are binding precedents for the proposition that Circulars in the nature of Ext.P8 are binding on the Department and no officer can take a view contrary to stipulations contained in such Circulars. The fact that the Circular was issued only after the issuance of Ext.P1 order of the first appellate authority is no reason to hold that the petitioner is not entitled to the benefits of the Circular. The contention raised by the learned counsel for the respondent Department that the petitioner has an effective alternative remedy before the GST Appellate Tribunal does not appeal to this Court for the simple reason that the GST Appellate Tribunal is yet to be constituted. The fact that the period of limitation will start to run only from the date of the constitution of the Appellate Tribunal is no solace to the petitioner. The petitioner is, therefore, entitled to exercise the jurisdiction of this Court under Article 226 of the Constitution of India to challenge the orders impugned in this writ petition. Petition allowed.
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