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2023 (4) TMI 253 - HC - GSTMaintainability of petition - existence of second appellate forum, or not - It is contended that the petitioner has already deposited 10% of the demanded tax amount before the first appellate authority and as there is no second appellate forum, this Court should entertain this writ petition - HELD THAT - Since the petitioner wants to avail the remedy under the provisions of law by approaching 2nd appellate tribunal, which has not yet been constituted, as an interim measure subject to the Petitioner depositing entire tax demand within a period of four weeks from today, the rest of the demand shall remain stayed during the pendency of the writ petition. Issue notice to the opposite parties.
Issues involved: Challenge to 1st appellate order under GST Act, delay in constituting 2nd appellate tribunal, liability to pay tax and penalty.
Summary: Challenge to 1st appellate order: The writ petition challenges the 1st appellate order dated 24.02.2023 passed by the Joint Commissioner of State Tax (Appeal), CT & GST Territorial Range, Bhubaneswar. The order was not admitted due to contravention of sub-sections (1) & (4) of Section 107 of the GST Act, and the appeal filed under sub-Section (1) of Section 107 of the Odisha Goods and Services Tax Act, 2017 was rejected. Delay in constituting 2nd appellate tribunal: The petitioner contended that although a second appeal lies against the 1st appellate order, the 2nd appellate tribunal has not yet been constituted. The petitioner had already deposited 10% of the demanded tax amount before the first appellate authority. Due to the absence of a second appellate forum, the Court was requested to entertain the writ petition. Liability to pay tax and penalty: The Addl. Standing Counsel argued that there was a delay in preferring the appeal, and the Court may not be able to condone the delay beyond four months. The petitioner was deemed liable to pay the tax, and if wishing to appeal before the 2nd appellate tribunal, was required to pay 20% balance disputed tax for consideration of the appeal. Court's Order: Notice was issued to the opposite parties. An interim measure was granted, allowing the petitioner to approach the 2nd appellate tribunal subject to depositing the entire tax demand within four weeks. The remaining demand was stayed during the pendency of the writ petition. The I.A. was disposed of, and the matter was listed for further hearing after two weeks along with another related case.
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