JUDGMENT :

1. On oral request of learned counsel for the petitioner, the GST Council, New Delhi through its Member Secretary is allowed to be impleaded as respondent No. 5.

2. Notice on behalf of respondent No. 5 has been accepted by the office of learned Additional Solicitor General.

3. Heard Sri Rahul Agarwal, learned counsel for the petitioner, Sri B.P. Singh Kachhwah, learned Standing Counsel for the State-respondents. Sri Amit Mahajan, learned Senior Standing Counsel - (Indirect Taxes) for the respondent Nos. 2 and 3 and Sri S.P. Singh, learned Additional Solicitor General for the respondent Nos. 4 and 5.

4. Briefly stated facts of the present case are that the petitioner filed refund application under Section 54 of the Central Goods and Service Tax Act, 2017/U.P. Goods and Service Tax Act, 2017 (hereinafter referred to as ''the Acts, 2017") in form GST-RFD-01 on 31.3.2020 for which an acknowledge receipt in RFD-02 was issued by the respondents on 9.4.2020. The refund application of the petitioner was rejected by the proper officer by order dated 29.4.2020 in form GST-RFD-06. Aggrieved with the aforesaid order dated 29.4.2020, the petitioner filed an appeal before the respondent No. 2, i.e. the First Appellate Authority under the Act, 2017, which was partly allowed by order dated 29.6.2021. Against the order of the First Appellate Authority, the petitioner has a right of appeal under Section 112 of the Act, 2017 but since GST Tribunal has not been constituted so far in the State of Uttar Pradesh, therefore, the petitioner has filed the present writ petition under Article 226 of the Constitution of India praying to quash the impugned order dated 29.6.2021 passed by the respondent No. 2 in so far as it rejects the application for refund of the petitioner for the months prior to March, 2018 to the extent of Rs. 7,92,739/-.

Preliminary objection raised by the Respondents:

5. Learned standing counsel and the learned counsel for Indirect Taxes have raised a preliminary objection as to maintainability of the writ petition on the ground that the petitioner has a remedy of appeal under Section 112 of the Act, 2017. They alongwith the learned Additional Solicitor General of India, jointly submit that the matter of constitution of State Bench of Tribunal at Prayagraj and 4 Area Benches in other parts of Uttar Pradesh is pending before the respondent No. 4 but on account of interim order dated 4.3.2021 passed by the Division Bench in PIL Civil No. 6024 of 2021 (Awadh Bar Association High Court, Lko Thru Gen. Secy. and Another vs. U.O.I. Thru Secy. Finance Ministry, New Delhi and Others), neither State Bench nor Area Benches under Section 109 of the Act, 2017 could be notified. Therefore, as and when the State Bench and Area Benches are notified, the petitioner may avail the statutory remedy of appeal under Section 112 of the Act, 2017. It is further submitted that disputed questions of fact are involved in the case, which cannot be decided in writ jurisdiction under Article 226 of the Constitution of India.

6. Learned standing counsel for the State of U.P. has also produced copy of instructions dated 8.3.2021 sent by Joint Commissioner (GST) Commercial Tax, Headquarter Lucknow.

7. Learned Additional Solicitor General of India has stated on the basis of instructions that Government of India wants to establish State Bench and Area Benches of GST Appellate Tribunal in the State of Uttar Pradesh but on account of interim order dated 4.3.2021 in PIL Civil No. 6024 of 2021 (Awadh Bar Association High Court, Lko Thru Gen. Secy. and Another vs. U.O.I. Thru Secy. Finance Ministry, New Delhi and Others), the State Bench and Area Benches of GST Appellate Tribunal cannot be established in the State of Uttar Pradesh without leave of the Court. He further submits that against the judgment dated 31.5.2019 in PIL Civil No. 6800 of 2019 (Oudh Bar Asso. High Court, Lko. Thru General Secretary and Another vs. U.O.I. Thru Secy. Ministry of Finance and Others),