2024 (1) TMI 123 - HC - GST

Non-admission of appeal preferred by the petitioner - contravention to sub-sections (1) (4) of Section 107 of the GST Act - 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 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 30.06.2023, which was passed by the Joint Commissioner of State Tax (Appeal), Territorial Range, Puri. The authority did not admit the appeal as it was deemed to be in contravention of 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 by the appellate authority.

Delay in Preferring Appeal:
The petitioner, through their counsel, argued that they are not liable to pay the tax and penalty. They contended that although a second appeal lies against the 1st appellate order, the 2nd appellate tribunal has not been constituted yet. The petitioner had already deposited 10% of the demanded tax amount before the 1st appellate authority. Due to the absence of a second appellate forum, the petitioner sought the High Court's intervention by filing the writ petition.

Constitution of 2nd Appellate Tribunal:
The Additional Standing Counsel for the Department 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 was not vested with discretion to condone the delay beyond one month after three months from the date of communication of the impugned order. The petitioner was informed that if they wish to appeal before the 2nd appellate tribunal, they would need to pay 20% of the balance disputed tax for the appeal to be considered.

Separate Judgement:
No separate judgment was delivered by the judges in this case.

Conclusion:
The High Court entertained the writ petition since the 2nd appellate tribunal had not been constituted. As an interim measure, the petitioner was directed to deposit the entire tax demand within fifteen days. The rest of the demand was stayed during the pendency of the writ petition. The Interlocutory Application was disposed of, and the matter was listed along with another case for further proceedings.