Section 174 is a validly enacted piece of legislation and cannot be said to be without legislative competence. Hence, the contention of the appellant that Section 174 is a still born provision and unconstitutional is devoid of merits and substance.
Section 174 of the CGST Act, 2017 — Transitional Provisions - The appellant, a dealer in jewellery, challenged the order dated 25.10.2018 passed by the learned Single Judge, whereby the petition was disposed with a liberty to avail the alternative remedy available under the law. The respondent department passed an order dated 31.3.2018 under Section 39(1) of KVAT Act, levying tax, penalty and interest amounting for the year 2012-13. The appellant’s main contention is that the order passed by the competent authority is bad in law and he has challenged the constitutional validity and clauses (d) and (e) of Section 174(1) of the Act, 2017. He has also prayed for quashment of the order dated 31.3.2018. The learned Single Judge dismissed the writ petition rejecting the challenge to the Constitutional validity and arrived at a conclusion that the against the reassessment order dated 31.3.2018 there is a remedy of appeal under Section 62 of the KVAT Act. The petitioner counsel argued that Section 174 has no constitution legs to stand on. The court observed that the Hon’ble Supreme Court has held that it is a settled principle of interpretation that legislative entries are required to be interpreted broadly and widely so as to give powers to legislature to enact the laws with respect to the matters enumerated in the legislative entries. Therefore, by no stretch of imagination it can be held that clauses (d) and (e) of Section 174(1) of the Act, 2017 is ultra vires. Learned Single Judge was therefore justified in holding that the reassessment order dated 31.3.2018 for the period 2012-13 is clearly appealable before the appellate authority under Section 62 of the KVAT Act, 2003.
Held that:- The Hon’ble High Court dismissed the writ appeal with a liberty to the petitioner company to avail the alternative remedy, if it so chooses and in case, the appeal is preferred within a period of four weeks, the issue of limitation will not come in the way and the matter shall be decided on merits.