2022 (6) TMI 1082 - HC - GST

Maintainability of petition - availability of alternative remedy of appeal - petitioner submits that there is remedy of filing of an appeal under Section 112 of the UPGST Act before the GST Appellate Tribunal but since GST Appellate Tribunal has still not been constituted, as such, the petitioner has filed instant writ petition before this Court - HELD THAT - It is prima facie evident from the Annexure No. 8 that M/s Shree Trading Company is registered on the portal of the GST. It is also evident therefrom that SGST and CGST has been paid by the petitioner. Further the petitioner has also not been afforded proper opportunity to rebut/respond to the demand notice as he was bed ridden at that time. Matter requires consideration - List/put up this matter in the week commencing 8th of August 2022.

Summary

Issues:
Challenge to order passed by Additional Commissioner (Grade-2) (Appeals)-Second, Commercial Tax, Ayodhya under UPGST Act due to non-constitution of GST Appellate Tribunal.

Analysis:
The petitioner, a registered dealer of food-grains, oil seeds, etc., challenged an order dated 31.3.2022 by the Additional Commissioner, alleging that the supplier, M/s Shree Trading Company, charged SGST and CGST on transactions but was later deemed non-existent by the Assessing Authority. The petitioner received an ex-parte order reversing Input Tax Credit (ITC) and demanding payment. The petitioner contended genuine transactions with M/s Shree Trading Company, submitting evidence, but the appeal before the Additional Commissioner was decided against the petitioner, leading to the present writ petition.

The petitioner argued that the order was ex-parte due to health reasons, and the appellate authority's finding was contradictory regarding the petitioner's reply submission. The petitioner maintained that SGST and CGST were paid to M/s Shree Trading Company as per invoices. The respondent authority, however, asserted that M/s Shree Trading Company was fake, and the taxes were never paid, justifying the order.

Upon review, the Court found that M/s Shree Trading Company was registered on the GST portal, indicating payment of SGST and CGST by the petitioner. The Court noted the petitioner's lack of opportunity to respond due to health issues, requiring further consideration. The Court directed the respondents to file a counter affidavit within four weeks and allowed a rejoinder affidavit within two weeks. The matter was scheduled for listing in August 2022, with a stay on the order subject to the petitioner depositing 20% of the disputed amount within two weeks of receiving a certified copy of the order.