The existence of a statutory remedy does not preclude the exercise of writ jurisdiction, especially when constitutional remedies are invoked.

JUDGMENT

Sri Dipak Seth, learned senior counsel for opposite party nos.1 and 2 has filed preliminary objection against maintainability of the present writ petition filed against the order of assessment on the ground that the petitioner having a statutory remedy of appeal under Section 107 of the The Central Goods and Services Tax Act, 2017 [here-in-after referred to as 'CGST Act, 2017 for the sake of brevity] for adjudication of disputed questions of law and fact may not be well within his right to bypass the remedy of appeal.

2. According to learned counsel for the opposite parties, the statutory remedy of appeal would bar the writ jurisdiction of this Court in view of the Apex Court judgment in the case of N. P. Ponnuswami v. Returning Officer Namkkal Constituency & Ors. [(1952) 1 SCC 94]. Attention of this Court was drawn to paragraph 90 of the judgment emphasizing on the principle that such a remedy provided under the statute cannot be allowed to be bye-passed for it being effective and efficacious.

3. Suffice it to say that the statutory remedy prescribed under law is subservient to the constitutional remedy and does not oust the jurisdiction of Writ Court.

4. Sri Siddharth Dhaon, learned counsel has also emphasised on the same principle besides the fact that the interest of the revenue insofar as payment in foreign currency is concerned, cannot be overlooked and to that extent the CGST would be payable at least.

5. Sri Sujit Ghosh, learned Senior Advocate assisted by Ms. Mannat Waraich and Sri Anuj Singh, learned counsel for the petitioner has taken us through various clauses of reimbursement agreement under which the international assignees have come to be employed by the Indian Company under independent contracts of employment. The independent contracts of employment provide for scale of salary and other benefits against various heads.

6. It is therefore argued by learned senior counsel that the salary in its entirety paid by the Indian Company to the international assignee has been made exigible to income tax by virtue of Section 192 of Income Tax Act, 1962 and TDS was duly deducted and paid to the department. The entire salary paid to the international assignees has been accounted for under the contract of employment and there is no question of such a contract between the parties being treated as service contract which may be exigible to CGST within the scope of 'services by an employee to the employer in the course of or in relation to his employment'.

7. The entire salary and benefits according to learned senior counsel appearing for the petitioner is accounted for under Section 192 of the Income Tax Act, 1962 for the purposes of deduction of income tax, therefore, no part of the salary payable to the foreign assignees has escaped the income tax.

8. That being so, such a contract of employment cannot be interpreted to be a service contract and the Apex Court judgment placed reliance upon in the order of assessment would be distinguishable.

9. Learned senior counsel has further argued that the interest of the revenue has fully been protected on the deposit having been made much more than the statutory prescription though under protest.

10. We find that the matter involves interpretation of a judgement rendered by Hon'ble the Apex Court in the case of C.C., C.E. & S.T.-Bangalore v. Northern Operating Systems Pvt Ltd. [Civil Appeal No. 2289-2293 of 2021] dated 19/05/2022. It is for this reason that several other High Courts have also entertained the writ petitions both on inception of proceeding or even after an assessment order passed by the assessing authority.

11. Thus, the matter requires consideration on the nature of the agreement of employment and the application of law in the judgement rendered by Hon'ble the Apex Court in C.C., C.E. & S.T.-Bangalore v. Northern Operating Systems Pvt Ltd (supra) therefore, the preliminary objection for that limited purpose is overruled.

12. Let a counter affidavit be filed with