2023 (12) TMI 1191 - HC - GST

Maintainability of petition - availability of alternative remedy - non-constitution of the tribunal - 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. The I.A. stands disposed of - List this matter on 31st October, 2023.

Summary

Issues involved: Delay in constituting Second Appellate Tribunal under GST Act, challenge to 1st appellate order, liability to pay tax and penalty, petition for writ jurisdiction due to absence of Second Appellate Tribunal.

Summary:

1. Challenge to 1st Appellate Order: The petitioner filed a writ petition challenging the 1st appellate order dated 31.03.2023 by the Joint Commissioner of State Tax(Appeal) CT & GST, Koraput Range at Jeypore. The petitioner contended that the order contravened Sub-Sections(1) & (4) of Section 107 of the GST Act and rejected the appeal under Sub Section(1) of Section 107 of the Odisha Goods and Services Tax Act, 2017.

2. Liability to Pay Tax and Penalty: The petitioner argued that they are not liable to pay the tax and penalty. The counsel stated that the petitioner had already deposited 10% of the demanded tax amount before the first appellate authority. However, the Additional Standing Counsel contended that the petitioner is liable to pay the tax and must deposit 20% balance disputed tax for consideration of its appeal by the 2nd Appellate Tribunal.

3. Delay in Constituting Second Appellate Tribunal: The Court observed that despite the GST Act being in operation since 1st July 2017, the Tribunal has not been constituted, causing pressure on High Courts. The Central Government was directed to create the GST Tribunal for adjudication of GST cases, as it is a statutory mandate that cannot be ignored.

4. Writ Jurisdiction Due to Absence of Second 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 matter was listed for further hearing on 31st October, 2023.

5. Notice Issued: Notice was issued to the opposite parties and Mr. P.K.Parhi, learned counsel for the Central Government to explain the non-constitution of the 2nd Appellate Court for dealing with GST matters. Mr. Digant Das, learned Standing Counsel for the department accepted the notice for the opposite parties.

6. Further Directions: Mr. Parhi, learned DSGI for the Central Government was also served notice. Replies were to be filed within the specified timelines, and the case was scheduled for further proceedings.