2023 (8) TMI 301 - HC - GST

Maintainability of petition - petitioner has already deposited 10% of the demanded tax amount before the first appellate authority - no second appellate forum - 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 fifteen days from today, the rest of the demand shall remain stayed during the pendency of the writ petition. Application disposed off.

Summary

Issues Involved:
The issues involved in the judgment are the challenge to the 1st appellate order under sub-sections (1) & (4) of Section 107 of the GST Act, delay in preferring the appeal, liability to pay tax and penalty, and the constitution of the 2nd appellate tribunal.

Challenge to 1st Appellate Order:
The petitioner filed a writ petition challenging the 1st appellate order dated 13.03.2023 passed by the Joint Commissioner of Sales Tax (Appeal), Territorial Range, Cuttack II. The authority rejected the appeal under sub-Section (1) of Section 107 of the Odisha Goods and Services Tax Act, 2017, citing contravention to relevant sections of the GST Act. The petitioner contended that they are not liable to pay the tax and penalty, and as the 2nd appellate tribunal has not yet been constituted, the writ petition should be entertained.

Delay in Preferring Appeal:
The Standing Counsel argued that there is a delay in preferring the appeal, and the court may not be able to condone the delay beyond four months. The appellate authority does not have the discretion to condone the delay beyond one month after three months from the date of the order. The petitioner, if wanting to appeal before the 2nd appellate tribunal, is required to pay 20% balance disputed tax for consideration of the appeal.

Liability to Pay Tax and Penalty:
The Standing Counsel contended that the petitioner is liable to pay the tax, and if they wish to avail the remedy by appealing before the 2nd appellate tribunal, they must pay the balance disputed tax. The petitioner had already deposited 10% of the demanded tax amount before the 1st appellate authority.

Constitution of 2nd Appellate Tribunal:
Since the 2nd appellate tribunal has not yet been constituted, the petitioner sought interim relief subject to depositing the entire tax demand within fifteen days. The court ordered that the rest of the demand shall remain stayed during the pendency of the writ petition. The interim application was disposed of, and the matter was listed along with another case for further proceedings.