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2026 Supreme(Online)(Ker) 4506
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ZIYAD RAHMAN A.A., J
M/S.SUNIL CATERING SERVICES – Appellant
Versus
UNION OF INDIA – Respondent
WP(C) NO. 1588 OF 2026
For the Appellants/Petitioners: SHRI.AKHIL SURESH, SHRI.RAHUL T., SMT.ANITA ELIZEBETH BABU, SHRI.AMRITH M.J., SMT.KALLIYANI KRISHNA B.
For the Respondents: SMT.M.SANTHY, CGC, SHRI.ARUN AJAY SHANKAR, GOVERNMENT PLEADER
The court emphasized the necessity of utilizing statutory appeals rather than invoking Article 226 for adjudicating tax disputes.
Headnote:This matter concerns a writ petition challenging an order under Section 74 of the CGST Act for allegedly availing ineligible input tax credit. The petitioner contended that the order was based on flawed allegations devoid of willful suppression. The court noted the necessity of referring the matter to the statutory authority as required under Section 107 of the CGST Act. The primary issue related to the justifiability of invoking such powers under Section 74. The court determined that this case did not warrant interference under Article 226 of the Constitution. The petition was dismissed, allowing the petitioner to pursue statutory remedies.
| Table of Content |
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| 1. petitioner challenges order under cgst claiming ineligible itc. (Para 1) |
| 2. court emphasizes need for statutory appeal over constitutional intervention. (Para 3) |
JUDGMENT
The petitioner is a registered assessee under the provisions of the CGST/KGST Act, 2017. Challenge raised in this writ petition is against Ext.P4 order passed under Section 74 of the CGST Act alleging that the petitioner availed input tax credit beyond the eligibility. As far as Ext.P4 order is concerned, the same is appealable under Section 107 of the CGST Act . The learned counsel for the petitioner raised various contentions, including that, even from the show cause notice issued to the petitioner, it is discernible that the allegations raised against the petitioner are based on the return submitted by the petitioner and, therefore, the basic requirement of willful suppression on the part of the petitioner, which is mandatory for invoking the powers under Section 74 , is lacking. Therefore, it is submitted that, an interference is required under Article 226 of the Constitution of India and hence the petitioner is entitled to pursue the remedies before this Court without invoking the statutory remedy of appeal. The learned counsel for the petitioner also placed reliance upon the decision rendered by the High Court of Karnataka in W.P.
(C).No.7635 of 2024 inM/s.NCS Pearson INC v. Union of India and Others, wherein, in similar circumstances interference was made in the show-cause notice issued under Section 74 of the CGST Act .
2. I have heard the learned counsel for the petitioner and the learned Government Pleader for the respondents.
3. As far as the main issue involved in this case is concerned, the same pertains to the question whether, the invocation of the powers under Section 74 , at the instance of the respondents are justifiable. As regards the contention raised by the petitioner that no willful suppression is made out from the part of the petitioner, it is to be noted that a complete adjudication of the same can only be made after meticulously perusing the records that culminated in the impugned order. Such an exercise is not contemplated or permissible in a proceeding under Article 226 of the Constitution of India. Such exercise can be effectively done only by a statutory authority and the statute provides for an appeal under Section 107 of the CGST Act , before the competent authority. Therefore, I am of the view that, this is not a fit case in which the powers of this Court under Article 226 of the Constitution of India is to be invoked.
In such circumstances, I do not find any merit in this writ petition and accordingly, this writ petition is dismissed without prejudice to the right of the petitioner to invoke the statutory remedies. However, since it is discernible form the records that the petitioner filed this writ petition within the statutory period available for the petitioner, to file the appeal, it is ordered that, in case the petitioner is submitting an appeal within a period of two weeks from the date of receipt of this judgment, the same shall be treated as an appeal submitted in time.
Sd/-
