2023 (12) TMI 355 - HC - GST

Maintainability of petition - no second appellate forum - 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.

Summary

Issues involved:
The issues involved in this case are the challenge to the 1st appellate order under sub-sections (1) & (4) of Section 107 of the GST Act, the delay in preferring the appeal, 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 09.06.2023, which was passed by the Additional Commissioner of State Tax, CT & GST. The appeal was not admitted by the authority as it was deemed to be in contravention of the relevant sections of the Odisha Goods and Services Tax Act, 2017. The petitioner contended that they are not liable to pay the tax and penalty, and since the 2nd appellate tribunal has not yet been constituted, this writ petition was entertained by the Court.

Delay in Preferring Appeal:
The Additional 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 appellate authority did not have the discretion to condone the delay beyond one month after the lapse of three months from the date of communication of the impugned order. The petitioner was required to pay 20% of the balance disputed tax if they wished to appeal before the 2nd appellate tribunal.

Constitution of 2nd Appellate Tribunal:
As an interim measure, subject to the petitioner depositing the entire tax demand within fifteen days, the rest of the demand was stayed during the pendency of the writ petition. The Court noted that the 2nd appellate tribunal had not yet been constituted, and the petitioner wanted to avail the remedy under the provisions of the law by approaching the 2nd appellate tribunal.

This case highlights the importance of timely appeals, the constitution of appellate tribunals, and the implications of challenging appellate orders under the GST Act. The Court provided interim relief to the petitioner while the 2nd appellate tribunal was not yet in place, emphasizing compliance with tax demands and procedural requirements.