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2024 (1) TMI 571 - HC - GSTMaintainability of petition - appealable order - non-constitution of Appellate Tribunal - HELD THAT - The order impugned is appellable under Section 112 of the West Bengal Goods and Services Tax Act, 2017 corresponding to the Central Goods and Services Tax Act, 2017 and the appeal lies to the Appellate Tribunal - It is not in dispute that the Appellate Tribunal has not yet been constituted. The Government of India, Ministry of Finance, Department of Revenue Central Board of Direct Taxes and Customs GST Policy Wing issued a Circular dated 18th March 2020 on the subject of clarification in respect of appeal with regard to the non-constitution of Appellate Tribunal - The Hon ble Division Bench of the Bombay High Court in the case of Rochem India Pvt. Ltd. 2023 (2) TMI 878 - BOMBAY HIGH COURT after taking note of paragraph 4.2, 4.3 and 5 of the said circular observed that the Government with the intent that the taxpayers are not prejudiced for want of the tribunal extended the period of limitation. It is well settled that in the event the statutory remedy is not available, writ petition is maintainable - This Court is also of the considered view that a reasonable time should be allowed to the petitioner to approach the Appellate Tribunal after it becomes functional. This Court is, therefore, inclined to follow the time limit stipulated in paragraph 4.2 of the Circular dated 18th March, 2020 as such time limit appears to be reasonable within which the petitioner will be at liberty to file the appeal before the Appellate Tribunal. This Court is of the considered view that the following order will protect the interest of the petitioner as well as the Revenue - Petition disposed off.
Issues involved:
Challenge to order passed under Section 107 of the West Bengal Goods and Services Tax Act, 2017 and the Central Goods and Services Tax Act, 2017 for the period 2019-2020. Applicability of Section 112(8) of the Act in relation to deposit of remaining tax amount. Non-constitution of the Appellate Tribunal and its impact on filing appeals. Challenge to Order under Section 107: The writ petition challenges the order passed in appeal under Section 107 of the West Bengal Goods and Services Tax Act, 2017 and the Central Goods and Services Tax Act, 2017 for the period 2019-2020 due to the non-constitution of the Appellate Tribunal. The petitioner contends that the order is appealable, but in the absence of the tribunal, the writ petition serves as a recourse. Applicability of Section 112(8): The State, relying on subsection 8 of Section 112 of the Central Goods and Services Act, 2017, argues that the petitioner must deposit the remaining tax amount in dispute, in addition to the amount already paid under Section 107(6) of the Act, to be eligible for interim relief. It is asserted that bypassing the statutory remedy to avoid compliance with Section 112(8) is not permissible. Impact of Non-constitution of Appellate Tribunal: Given the non-existence of the Appellate Tribunal, the petitioner is unable to pursue the statutory remedy through an appeal. The Government's circular, dated 18th March 2020, extends the period for filing appeals due to the tribunal's absence, aiming to prevent prejudice to taxpayers. The Bombay High Court, in a similar case, granted protection to taxpayers until the tribunal becomes operational, emphasizing the need for safeguarding their interests during this transitional phase. Judicial Decision: Acknowledging the hardship caused by the non-constitution of the Appellate Tribunal, the Court opts to grant protection to the petitioner until the tribunal is established. The order directs an extension for filing the appeal and prohibits the enforcement of the impugned order for a specified period after the appeal filing deadline. The petitioner is granted liberty to present all contentions raised in the writ petition before the Appellate Tribunal once it is functional. This summary encapsulates the legal judgment's key aspects, including the challenges to the order under Section 107, the application of Section 112(8) regarding tax deposit, the impact of the non-constitution of the Appellate Tribunal, and the judicial decision to provide protection to the petitioner until the tribunal's establishment.
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