2023 (4) TMI 644 - HC - GST

Condonation of delay in filing appeal - 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 Mr. Sunil Mishra, learned Addl. Standing counsel for the Department accepts notice for the Opposite parties, let required number of copies of the writ petition be served on him within three working days. Reply be filed within two weeks and rejoinder thereto, if any, be filed before the next date. 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. Application disposed off.

Summary

Issues involved: Challenge to 1st appellate order under GST Act, delay in preferring appeal, constitution of 2nd appellate tribunal.

Summary:

Challenge to 1st Appellate Order:
The writ petition was entertained due to the absence of the Second Appellate Tribunal. The petitioner challenged the 1st appellate order which was not admitted as it was deemed to be in contravention of specific sections of the GST Act. The petitioner argued against liability for tax and penalty, having already deposited a portion of the demanded tax amount before the first appellate authority. As the 2nd appellate tribunal was not yet constituted, the petitioner sought relief through the writ petition.

Delay in Preferring Appeal:
The Standing Counsel contended that there was a delay in filing the appeal, and requested the court not to condone the delay beyond four months. The appellate authority was not empowered to extend the time limit beyond one month after three months from the date of the order. It was argued that the petitioner should pay the tax, and if opting to appeal to the 2nd appellate tribunal, a balance disputed tax of 20% must be paid for consideration.

Constitution of 2nd Appellate Tribunal:
The court issued notice to the opposite parties, with the Standing Counsel accepting notice on their behalf. The petitioner was allowed 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. An interim application was disposed of, and the matter was listed for further proceedings after two weeks.