Writ Petition Not Maintainable Unless the Appeal Remedy Is Used First
In many tax and GST disputes, businesses rush to file a writ petition before the High Court. But unless the statutory appellate remedy is first used, the writ petition is not maintainable. Indian courts have repeatedly clarified this legal principle.
Let’s break this down for easy understanding.
What Does “Writ Petition Not Maintainable” Mean?
A writ petition is a legal remedy under Article 226 of the Constitution of India, allowing individuals to approach High Courts when their rights are violated.
However, courts generally do not entertain writs if there is an alternate statutory remedy, such as an appeal, available under the law.
Legal Basis for Dismissing Writs
- Constitutional Provision:
Article 226 grants High Courts the power to issue writs for enforcement of fundamental and legal rights. - Judicial Principle:
Courts follow the doctrine of alternate remedy, which means if an appeal or revision process is available under the law, the High Court should not entertain the writ.
CBDT & CBIC View
While the CBDT or CBIC do not issue specific instructions on writ maintainability, they expect taxpayers to follow the full chain of appellate remedies provided in:
- Section 107 to 112 of CGST Act for GST
- Section 246A of Income-tax Act for direct taxes
Filing writs prematurely is discouraged and can be dismissed as not maintainable.
Important Case Laws on This Issue
| Case Name | Court | Key Takeaway |
|---|---|---|
| Assistant Commissioner v. GlaxoSmithKline (2020) | SC | Writ cannot bypass statutory appellate remedy unless violation of fundamental rights is shown |
| Raja Trading Co. v. State of U.P. (2023) | Allahabad HC | Dismissed writ for skipping GST appeal process |
| Annamalaiyar Traders v. Joint Commissioner (2022) | Madras HC | Taxpayer must file appeal before invoking writ jurisdiction |
These decisions reinforce that writs should be the last resort, not the first step.
Expert Tip: When Can You File a Writ Directly?
While writ petition not maintainable is the norm, exceptions exist:
✅ When natural justice is violated
✅ When the order is passed without jurisdiction
✅ When delay in appellate remedy defeats justice
✅ In urgent cases involving fundamental rights
Always consult a qualified tax professional or lawyer before approaching the High Court.
Step-by-Step: What You Should Do Before Filing Writ
- Check for Appellate Remedy:
Refer to the specific Act (Income Tax, GST, etc.) - File Appeal in Time:
Use Form GST APL-01 (for GST), Form 35 (for Income Tax) - Wait for Outcome:
Most cases are resolved at appellate stages - Move to Writ Only If Needed:
Only when there’s gross injustice or delay
Summary
Writ petition not maintainable unless appeal remedy is exhausted – Courts mandate that taxpayers must first use the appellate mechanism under GST or Income Tax before filing writs. Exceptions exist but are rare. Know when and how to proceed.
FAQs
Q1. Can I go directly to the High Court in a tax case?
A: Only if there’s no alternative remedy, or a serious violation of rights has occurred.
Q2. What happens if I skip the appeal and file a writ?
A: The High Court will likely dismiss the petition as not maintainable.
Q3. Is there a time limit for filing appeal under GST?
A: Yes, 3 months from the date of order, extendable by 1 month.
Final Word
Before jumping into writ litigation, remember: use the appeal remedy first. It saves time, cost, and effort — and prevents your case from being thrown.