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2023 (9) TMI 1329 - HC - GSTMaintainability of petition - non-constitution of Second Appellate Tribunal - petitioner has already deposited 10% of the demanded tax amount before the first appellate authority - 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.
Issues involved: Challenge to 1st appellate order under GST Act, delay in constituting 2nd appellate tribunal, liability to pay tax and penalty.
Challenge to 1st appellate order: The petitioner filed a writ petition challenging the 1st appellate order dated 26.05.2023, which was passed by the Joint Commissioner of State Tax (Appeal) CT & GST Territorial Range, Koraput. The authority did not admit the appeal as it was deemed to contravene sub-sections (1) & (4) of Section 107 of the GST Act. The appeal filed under sub-Section (1) of Section 107 of the Odisha Goods and Services Tax Act, 2017 was rejected. The petitioner contended that they are not liable to pay the tax and penalty. The petitioner had already deposited 10% of the demanded tax amount before the first appellate authority. However, as the 2nd appellate tribunal had not yet been constituted, the petitioner sought relief through the writ petition. Delay in constituting 2nd appellate tribunal: The delay in constituting the 2nd appellate tribunal was highlighted as a key issue. The petitioner argued that since the tribunal had not been formed, the Court should entertain the writ petition. The petitioner was required to deposit the entire tax demand within fifteen days from the date of the order, and the rest of the demand would remain stayed during the pendency of the writ petition. Liability to pay tax and penalty: The Additional Standing Counsel contended that there was a delay in preferring the appeal, and the Court may not be able to condone the delay beyond four months. It was argued that the petitioner was liable to pay the tax and that if they wished to appeal before the 2nd appellate tribunal, they would need to pay 20% of the balance disputed tax for consideration of the appeal. The petitioner was required to avail the remedy by approaching the 2nd appellate tribunal and deposit the entire tax demand within fifteen days from the date of the order.
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