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GST - Case Laws
Showing 261 to 280 of 2178 Records
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2023 (11) TMI 1154
Transitional credit - Condonation of delay in obtaining permission from commissioner u/s 140(5) - application filed belatedly after five years from the prescribed date - HELD THAT:- Section 140 of the CGST Act enables a registered person to take in its electronic credit ledger, the amount of CENVAT credit/input tax credit carried forward in the return for the period up to 30/6/2017. Sub-section (5) of Section 140 prescribed a condition for taking transitional credit. The condition is that the invoice or any other duty or tax paying document pertaining to the transitional credit has to be recorded in the books of account of the registered person within thirty days from the appointed day. i.e., within 30th July, 2017. Proviso to the said Section permits such entry of invoice in the books of account beyond the thirty days period by a further period of thirty days upon permission to be obtained from the Commissioner concerned.
The appellant has entered the invoices within the said extended period of sixty days. But admittedly, it did not obtain any order from the Commissioner extending the limitation period beyond thirty days. From a perusal of Sub-section (5) of Section 140 of the CGST Act, it is evident that beyond the period of thirty days, an assessee can claim the transitional credit of input tax within another thirty days only on production of an order passed by the Commissioner.
The Commissioner, therefore, rightly rejected the application. As the Commissioner did not extend the limitation period, the appellant cannot claim the benefit of transitional credit regarding input tax.
There are no no illegality or impropriety in the impugned judgment of the learned Single Judge - appeal dismissed.
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2023 (11) TMI 1153
Input Tax Credit (ITC) - Failure of the supplier to deposit the Tax / GST amount - Failure to produce the Tax Invoice - constitutional validity of provisions of Section 16(2)(c) of the CGST Act and Rule 36(4) of the Central Goods and Services Tax Rules - HELD THAT:- It is settled that input tax credit is in the nature of a benefit/concession and not a right extended to the dealer under the statutory scheme. The said benefit can accrue to the assessee only as per the scheme of the statute - It is equally settled that the rule-making authority can provide restrictions in extending the concession. The benefit of an input tax credit can be availed by a purchasing dealer who sells or manufactures goods using raw materials on which tax has been paid only on satisfaction of the conditions for such availment enumerated in the statute.
One of the preconditions for the purchasing dealer to claim input tax credit under section 16 of the CGST Act is that he must produce the tax invoice issued by the supplying dealer. Coming to the facts of the cases, the appellants failed to produce the tax invoices despite sufficient opportunities extended. The appellants were issued a show cause notice under section 73(1) of the CGST/SGST Act. The appellants were called for a personal hearing. They did not appear for personal hearing either - The appellants did not discharge the said burden. They failed to produce any evidence to prove that they are entitled to the benefit of input tax credit. That apart, the appellants rushed to the writ court without exhausting the alternative appellate remedy.
Constitutional validity of Section 16(2)(c) of the CGST Act and Rule 36(4) of the CGST Rules - HELD THAT:- It is now well settled that any tax legislation may not be easily interfered with. The court must show judicial restraint to interfere with tax legislation unless it is shown and proved that such taxing statute is manifestly unjust or glaringly unconstitutional. Taxing statutes cannot be placed, tested or viewed on the same principles as laws affecting civil rights such as freedom of speech, religion, etc. The test of taxing statutes would be viewed on more stringent tests - Nothing in the impugned provisions indicates that they discriminate between the purchasing and selling dealers. As stated already, the input tax credit is in the nature of a benefit or concession conferred under the statute.
The impugned provisions prescribe certain conditions for the purchasing dealers to avail of the benefit. It is up to the purchasing dealer to avail of the said benefit/concession following those conditions. The prescription of the conditions cannot be considered discriminatory to contravene Article 14 - Nothing indicates that the impugned provisions satisfy the said test and thus manifestly arbitrary and glaringly unconstitutional. Under these circumstances, the challenge to the constitutional validity of the impugned provisions must fail.
There are no illegality or impropriety in the impugned judgments - appeal dismissed.
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2023 (11) TMI 1152
Denial of claim for transitional credit in respect of inward supplies made before 01.07.2017 - petitioner’s application for extending the limitation for claiming the transitional credit within the extended period of limitation of sixty days rejected - HELD THAT:- From perusal of Sub-section (5) of Section 140 of the GST Act, it is evident that beyond the period of thirty days an assessee can claim the transitional credit of input tax within another thirty days on an order passed by the Commissioner. Unless the order is passed by the Commissioner extending the period of limitation up to sixty days or less than, an assessee cannot claim the input tax credit in respect of the inward supply taken before 01.07.2017 - In the present case, the petitioner claimed input tax credit in his return after the initial period of thirty days expired, but without any order from the Commissioner extending the period of limitation beyond thirty days.
It is not found that the Commissioner has committed any error of law or jurisdiction in rejecting the application which has been filed belatedly after five years from the prescribed date. As the limitation period was not extended, the petitioner has been denied the benefit of transitional credit in respect of input tax vide Exhibit P-5 order in original dated 13.03.2023.
There are no substance in the writ petition - petition dismissed.
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2023 (11) TMI 1113
Refund of accumulated Input Tax Credit (ITC) - Turnover of Zero-rated supplies - mistake in submission of documents through common portal while filing applications in form GST RFD -01 - GST officer observed that, Shipping bills were not signed by appropriate authorities or obtained sanctioned from higher official as such those shipping bills cannot be accepted as “valid proof of export - HELD THAT:- The applicant has uploaded the documents which are required by the Circular. Only mistake was made by the petitioner is that he had uploaded the quadruplicate copy of the shipping bills which was countersigned by the Inspector of Customs. Subsequently, when it came to know about the anomalies, the petitioner has submitted the triplicate copy which was countersigned by the Superintendent of Customs before the Authority for consideration but without considering the same the respondent no. 2, has filed the appeal against the sanctioned order of refund issued by the adjudicating officer without verifying the said shipping bills from the Customs Department. Appellate authority has also not considered all these aspects while coming to a final conclusion - Accordingly, judgement and order dated 12.12.2022 passed by the Appellate Authority under Section 107 (2) of the GST Act is hereby set aside.
Respondent No. 4 is directed to reconsider the issue after thorough scrutiny of documents and verification of shipping bills submitted by the writ petitioner and shall take afresh decision within four months from this date after consulting with all other relevant departments concerned. Respondent No. 4 shall also give an opportunity being heard to the petitioner or his authorized representatives. No coercive action shall be taken against the writ petitioner by the respondents concerned till the final decision.
Petition disposed off by way of remand.
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2023 (11) TMI 1112
Refund of unutilized Input Tax Credit (ITC) - zero-rated supply - Clubbing of invoices - HELD THAT:- Admittedly the refund claim was for an aggregate amount of Rs. 10,09,000/-. The refund has been allowed only for Rs. 6,86,121/-. There has also been deduction on account of an invoice being no. EXP/2021-22/005 for Rs. 4,76,626/- - In such view of the matter the Appellate Authority in clubbing the refund claim of the petitioner with the invoice no. EXP/2021-22/005 dated 28 February, 2022 and in passing the impugned order has acted contrary to law. The clubbing or taking into account of this particular bill was without authority of law. Even if a portion of the claim was rejected, the simultaneous recovery was impermissible.
The portion of the order whereby Output Tax Invoice no. EXP/2021- 22/005 for Rs. 4,67,626/- has been denied and simultaneously recovered and/or adjusted is set aside - matter is remanded back to the Appellate Authority to consider the claim only in respect of the aforesaid amount of Rs. 4,76,626/- in accordance with law and positively within a period of eight weeks from the date of communication of this order.
Petition allowed by way of remand.
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2023 (11) TMI 1063
Suspension of registration of petitioner - no opinion recorded as stipulated under Rule 21A (2) of the CGST Rules, 2017 - principles of natural justice - HELD THAT:- As the petitioner has already submitted his reply to the show cause notice dated 12.10.2023, it would serve no purpose to keep the petition pending and therefore, the petition is disposed of with a direction to the respondent no.3, Assistant Commissioner/Superintendent Range-34, Division Hapaur, Commissionerate Noida to complete the proceedings instituted through show cause notice dated 12.10.2023 within three weeks from today and till the proceedings under Section 29 of CGST Act, 2017 are completed by the respondent no.3, the suspension of the registration of the petitioner as noted in the order dated 12.10.2023 shall remain stayed.
Petition disposed off.
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2023 (11) TMI 1062
Levy of IGST - supplies received from its holding company - secondment of employees - Reverse Charge Mechanism - HELD THAT:- Prima facie, salaries paid to employees, even though seconded by a foreign affiliate, in terms of the employment agreements with the respective employees, absent anything more, cannot be considered as payment for manpower services supplied by the foreign affiliate.
List on 10.01.2024 - In the meanwhile, the proceedings pursuant to the impugned SCNs are stayed.
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2023 (11) TMI 1061
Refund of GST (amount paid twice) - tax paid in respect of arecanuts that were being transported without a valid E-Way Bill - HELD THAT:- The petitioner’s grievance arises on account of his inability to file an application for refund online. It is stated that there is no option available in the portal for the petitioner to apply for a refund online - Undisputedly, the tax penalty and fine quantified in GST MOV-10 dated 28.02.2022, cannot be collected twice over. The respondent authorities are, thus, required to refund the same.
It is considered apposite to dispose of the petition by permitting the petitioner to make an application for refund manually to Respondent No. 3 - petition disposed off.
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2023 (11) TMI 1060
Principles of natural justice - cancellation of GST registration of petitioner - cancellation without issuance of any SCN or without affording the petitioner, any opportunity to be heard - HELD THAT:- According to the petitioner, it did not receive the SCN. However, even if the respondent’s contention is accepted that a SCN, a copy of which is handed over, was, issued to the petitioner, the same would be of little assistance to the respondent because the SCN does not mention any time or date for personal hearing. Thus, the petitioner was not afforded a hearing to contest the SCN. The impugned order cancelling the petitioner’s registration is void as it has been passed in violation of the principles of natural justice - the impugned order is not informed by reason. It does not set out any ground for cancelling the petitioner’s GST registration. Thus, said order cannot be sustained.
It is considered apposite to direct that the petitioner’s GST registration be restored forthwith. The petitioner shall also comply with the statutory provisions by filing the returns in accordance with law.
Petition disposed off.
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2023 (11) TMI 1059
Seeking grant of bail - invocation of Section 438 of the Code of Criminal Procedure at the stage of summons - HELD THAT:- Admittedly, no steps were taken by the Department under Section 69 of the Central Goods and Services Tax Act, 2017, though the petitioner had been appearing over a period of time.
The Honourable Supreme Court in THE STATE OF GUJARAT ETC. VERSUS CHOODAMANI PARMESHWARAN IYER & ANR. ETC. [2023 (7) TMI 1008 - SUPREME COURT] held that at the stage of summons the person summoned cannot invoke Section 438 of the Code of Criminal Procedure.
The Criminal Petition is disposed off.
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2023 (11) TMI 1058
Seeking review of assessment order - Input Tax Credit - Even though statutory notices were issued to the appellant, she did not respond - violation of principles of natural justice - HELD THAT:- What is sought by the appellant, in effect, is the review of the said assessment order. The appellant made no case for rectification. The rectification under section 161 of the GST Act is permissible only when there are errors apparent on the face of the record, in a situation where the show cause notice was contested, which is not the case here. When a show cause notice is not contested, the resultant order passed assumes the nature of an agreed order and a rectification application will not lie to correct a factual mistake therein.
There are no merit in the appeal - appeal dismissed.
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2023 (11) TMI 1057
Validity of SCN - petitioner did not avail the opportunity of hearing - petitioner claimed ITC, but did not file GST-ITC 02 electronically as per Section 18 of CGST Act and Rule 41 of the CGST Rules 2017 - HELD THAT:- The question, if electronically filing in GST-ITC 02 could not be because of some technical error, non-availability on GST portal of such Form at the relevant point of time, is a question, which can be duly considered and decided if such plea is taken in the objections pursuant to the show cause notice, by the competent authority. Even if it could not be filed electronically for the reason as mentioned in the letter of the petitioner and also of TDN and manual filing could have been done or the petitioner could have waited for some period for availability of GST-ITC 02 Form on the portal, is also a question, which can be considered and decided by the competent authority. By the show cause notice, the petitioner has been afforded opportunity to file objections and also to file evidence - there are no reason at this stage of the issuance of show cause notice, particularly, when there is no challenge to the jurisdiction of the authority issuing the show cause notice, as also in the absence of any argument challenging the notice on such grounds, on which the judicial review may be open against the show cause notice, to entertain the writ petition.
In SPECIAL DIRECTOR VERSUS MOHD. GHULAM GHOUSE [2004 (1) TMI 378 - SUPREME COURT] the Hon’ble Apex Court deprecated the practice of High Courts entertaining writ petitions questioning the legality of show cause notices stalling enquiries as proposed and retarding investigative process. The Hon’ble Apex Court held that unless the High Court is satisfied that the show cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, the writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition.
In the present case, APGST Act is also a complete code and consequently, the petitioner should respond to the show cause notice raising all such objections, as may be raised before the authority issuing the show cause notice and in case any adverse order is passed and the petitioner feels aggrieved, the petitioner may then have recourse to the appropriate proceedings.
In M/S TIKONA INFINET PRIVATE LIMITED VERSUS STATE OF U.P. AND ANOTHER [2023 (8) TMI 46 - ALLAHABAD HIGH COURT] there was admitted position with respect to the non-availability of the Form GST ITC 02 in GST portal for the entire period of 30 days from the registration of the separate business of the entity therein and even on the date of filing of the writ petition. In the present case, such a position is not admitted, which the petitioner would be required to state and establish before the authority.
In the present case, the petitioner has not been deprived from availing the input tax credit as of now, but the show cause notice has been issued granting opportunity. So, at this stage, it cannot be said that as a consequence of not submitting Form GST ITC-02 electronically, the petitioner has been deprived of the claim of input tax credit. The petitioner has the opportunity and on such opportunity on verification of such fact, the authority has yet to consider the petitioner’s claim of input tax credit.
Thus, the petitioner should approach the authority which has issued the show cause notice and file the objections with evidence, and if so desire, to avail the opportunity of personal hearing with due intimation to the authority concerned - petition dismissed.
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2023 (11) TMI 1056
Exemption from GST - activities carried by DISCOMS against recovery of charges from consumers under State Electricity Act - guarantee provided by State Government to state owned companies against guarantee commission - HELD THAT:- The petitioner was neither collecting nor depositing GST, in respect of the services in question, prior to the issuance of the impugned circular. However, notwithstanding that paragraph No. 4 of the circular was quashed by the Gujarat High Court, the petitioner has continued to collect GST from its consumers and deposit the same with the GST authorities. Resultantly, the consumers are now burdened with the liability to pay GST in respect of services, which according to the petitioner are exempt from the levy of GST - it is found difficult to accept that the petitioner could collect any GST from its consumers after paragraph 4 of the impugned circular had been set aside.
It is considered apposite to defer the consideration of the present petition - List on 08.01.2024.
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2023 (11) TMI 1055
Seeking grant of Regular Bail - involvement in utilizing bogus Input Tax Credit (ITC) through fake documents - mala fide intention of not paying taxes - HELD THAT:- From the record it is apparent that the petitioner is in custody since 20.09.2022 i.e for the last more than one year. All the offences are triable by the Court of Magistrate and the conclusion of the trial may take quite a long time. Thus, the fact as to whether the FIR in the present case is maintainable or not, shall be adjudicated by the Trial Court during the course of trial.
The petitioner is ordered to be released on bail subject to his furnishing bail bonds/surety bonds to the satisfaction of the trial Court/Duty Magistrate/Chief Judicial Magistrate - Petition allowed.
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2023 (11) TMI 1054
Validity of assessment order - against Ext.P1 assessment order, the petitioner has filed Ext.P2 appeal and Ext.P3 stay application - HELD THAT:- No decision has been taken on the stay application. Learned counsel also submitted that the appeal is on time. Learned counsel further submitted that pending consideration of the appeal and stay application, Ext.P4 demand notice has been issued.
Considering the aforesaid facts, the present writ petition is disposed of with a direction to the 2nd respondent to consider and pass orders on Ext.P3 stay application of the petitioner in accordance with law, within a period of one month. For a period of one month, Ext.P4 notice shall not be given effect.
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2023 (11) TMI 1053
Exemption from GST - activity of affiliation - two colleges affiliated to Bharathiyar University, Coimbatore - whether the services provided by it to its constituent colleges such as the petitioners viz., self-financing and Management Colleges, were exempted from GST vide Entry 66 of Notification No.12/2017-CT (Rate) dated 28.06.2017, or not - HELD THAT:- There is no ambiguity in the language in Entry b (iv) to Entry 66 to Notification No.12/2017 – CT (Rate) dated 28.06.2017 as amended by Notification No.2/2018-CT dated 25.01.2018. Entry b (iv) to Entry 66 to Notification No.12/2017 – CT (Rate) dated 28.06.2017 as amended by Notification No.2/2018-CT dated 25.01.2018 is applicable only for services relating to examination or conduct of examination by petitioner colleges in W.P.No.11038 of 2022 & W.P.No.5967 of 2023 and not to work relating to affiliation.
The Hon’ble Supreme Court has repeatedly held that the operation of the notification has to be judged not by the object which the rule making authority had in mind but the express words it has employed effectuate the legislative intent.
In UNION OF INDIA VERSUS WOOD PAPERS LTD. [1990 (4) TMI 55 - SUPREME COURT], the Hon’ble Supreme Court held that at the stage of applicability, the Notification has to be construed strictly and the ambit should not be widened or extended. It further held that only once that stage is crossed, the notification should be construed liberally that is other technicalities and procedural compliances should not come in the way of extending the benefit.
The service of admission or conduct of examination cannot be equated on par with service provided to the petitioners in W.P.No.11038 of 2022 and W.P.No.5967 of 2023 by Bharathiar University. Similarly, service provided by the respective Universities are also exempted. By no stretch of imagination, there is any scope for drawing an inference that service provided by the Bharathiyar University or Pondicherry University or the Tamil Nadu Dr.MGR Medical University to their constituent colleges can be construed be exempted under Entry 9 to Notification No.12/2017-CT (Rate) dated 28.06.2017.
It is therefore held that Entry (b) (iv) to Entry 66 to Notification No.12/2017 – CT (Rate) dated 28.06.2017 as amended by Notification No.2/2018-CT dated 25.01.2018 is confined only to services relating to admission to, or conduct of examination by educational institution and not to services relating to affiliation of constituent colleges.
Petition dismissed.
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2023 (11) TMI 1052
Seeking grant of bail - avalling and passing on of ineligible ITC on the strength of fake invoices issued without actual supply of goods - HELD THAT:- In the present matter, the tax liability above bailable offence of 5 Cr. is Rs. 38,81,443, the entities who supplied articles to the applicant are active on GST Portal but not verified by the department, there is no chance of accused fleeing from the country nor he is a habitual offender and applicant is no more required for custodial interrogation when the custodial interrogation of applicant was not sought by the department and applicant was sent to judicial custody directly on 14.10.2023, the offence falls within preview of Section 41 A CrPC having punishment of 5 years but no notice u/s 41 A CrPC has been given, therefore, in view of the abovesaid facts and circumstances, the present applicant Iftikar Malik is admitted to bail, on furnishing personal bond in the sum of Rs. 1,00,000/- with two sureties of like amount and subject to the satisfaction of Ld. MM/Ld. Link MM/Ld. Duty MM with the conditions imposed.
Bail application disposed off.
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2023 (11) TMI 1021
Service of SCN not made - no reply to SCN - contention of the petitioner is that the petitioner had not received any show cause notice and hence, they are not in a position to file their reply - HELD THAT:- In the present case, it appears that the show cause notice was issued to the petitioner and the petitioner had received the same. Thereafter, the assessment order was passed on 17.07.2023. However, the petitioner is not in agreement with the same, since there was an error in the said assessment order. Hence, the petitioner had filed a rectification application through online on 17.08.2023 and physically on 29.08.2023.
Though this writ petition has been filed challenging the impugned order dated 17.07.2023, it will be sufficient to meet out the case of the petitioner if the rectification application of the petitioner is disposed of by the respondent - this Court directs the respondents to dispose of the rectification application filed by the petitioner dated 17.08.2023 and 29.08.2023 on or before 31.12.2023.
Petition disposed off.
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2023 (11) TMI 1020
Challenge to order of penalty levied under Section 122 of GST Act - delay in depositing the tax so collected beyond a period of three months - HELD THAT:- There is no material on record or even an allegation against the petitioner that the amount was collected but not paid or evaded, but only allegation is that the amount was not pad within the time prescribed and was paid after a delay. Even if the said allegation for the sake of argument is treated to be correct, the only penalty imposable against the petitioner would be Rs. 10,000/- as no amount of tax has admittedly been evaded by the petitioner. Even otherwise, the Appellate Authority or even the Assessing Authority has failed in following the general disciplines relating to penalty, specifically the mandate of Section 126(2) of the Act.
In the present case, in terms of the Notification dated 01.06.2021, the Government in exercise of its powers under Section 128 of the Act had issued guidelines waiving the late fee for filing the returns, this factor had to be validly considered while imposing the penalty in terms of mandate of Section 126(2) of the Act. In the facts of case, the maximum penalty imposable was Rs. 10,000/- or the tax evaded, whichever was more; there being no allegation of tax evasion, the maximum penalty that could have been imposed was Rs. 10,000/- which could even be lower than the said amount if the Taxing Authority as well as the Assessing Authority had considered the mandate of Section 126(2) of the Act read with Notification dated 01.06.2021. The said exercise clearly has not been done.
The petitioner states that the petitioner is ready and willing to accept the penalty of Rs. 10,000/- to give quietus to the litigation - Considering the scope of the provisions as discussed herein above as well as the offer made by the petitioner, the orders impugned are set aside.
The petitioner shall pay a penalty of Rs. 10,000/- in both the cases within a period of two weeks from today by depositing the same with the department - Petition disposed off.
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2023 (11) TMI 1019
Principles of Natural Justice - Jurisdiction - power of Assessing Authority to issue SCN - tax liability with interest against the petitioner for conducting the business without registration - HELD THAT:- The order impugned cannot be said to be without jurisdiction and has not been passed in violation of the principles of natural justice. The Assessing Authority has the power to issue a show cause notice under Section 63 and pass the Assessment Order in accordance with the law in respect of the receipts received by the petitioner for providing services. Therefore, the said order cannot be said to be without jurisdiction. The petitioner was afforded the opportunity to file a reply and was also personally heard in the matter, and thereafter, the impugned order was passed.
While exercising the writ jurisdiction, the Constitutional Court would confine only to the decision making process of the authority. If the decision has been taken as per the prescribed procedure, in observance of the principle of natural justice, even if the decision is rendered by the authority on an erroneous question of law and a statutory appeal is available against such an order, the Writ Court would not interfere with the decision and the remedy would be for filing the statutory appeal.
Thus, the present writ petition cannot be entertained against the impugned assessment order, which has been passed in accordance with the law - The writ petition is dismissed.
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