2021 (10) TMI 841 - HC - GST

Rejection of application of the petitioner for refund - contention of petitioner is that no Tribunal has been constituted by the Central Government as envisaged under Section 109 of the U.P.G.S.T. Act, and therefore, this writ petition is being filed - HELD THAT - In their counter affidavit, the respondents shall specifically state what action has been taken by them in compliance of the directions aforesaid. It needs no iteration that the Appellate Tribunal is the last fact finding authority and the aggrieved persons are deprived of their valuable statutory right due to non-availability of that forum. It is being made clear that if no satisfactory reply/compliance to the aforesaid directions is reflected in the counter affidavit, this Court may be constrained to summon the authorities concerned. List after three weeks.

Summary

Issues:
Challenge to order rejecting refund application; Constitution of Tribunal under U.P.G.S.T. Act; Remedies for dealers in Uttar Pradesh under CGST Act/U.P. GST Act; Compliance with directions for setting up Appellate Tribunal in Uttar Pradesh.

Analysis:
The judgment pertains to a challenge against an order dated 6.8.2021, upholding the rejection of a refund application by the Additional Commissioner Grade-2 (Appeal)- First Commercial Tax Noida, based on an order dated 22.7.2019 by the First Authority. The petitioner contends that no Tribunal has been constituted by the Central Government as required under Section 109 of the U.P.G.S.T. Act, leading to the filing of this writ petition.

In response, the learned counsel for the respondents, including the Central Board of Indirect Taxes and Customs, are granted three weeks to file their counter affidavits. Reference is made to a judgment of a Division Bench in the matter of Torque Pharmaceuticals Pvt. Ltd. Vs. Union of India, highlighting the lack of an Appellate Tribunal in Uttar Pradesh for dealers under the CGST Act/U.P. GST Act. The judgment directs the GST Council to recommend the establishment of a State Bench and Area Benches of the Appellate Tribunal in Uttar Pradesh, specifying locations and operational timelines.

The judgment emphasizes the importance of the Appellate Tribunal as the last fact-finding authority and notes the prejudice faced by aggrieved persons due to its unavailability. The respondents are required to detail their compliance with the directions for setting up the Appellate Tribunal in Uttar Pradesh in their counter affidavits. Failure to provide a satisfactory response may lead to summoning of the concerned authorities. The counter affidavits must specify the names and designations of the authorities responsible for ensuring compliance with the directions.

The case is listed for further proceedings after three weeks, indicating the court's intent to monitor the progress towards establishing the Appellate Tribunal in Uttar Pradesh and ensuring the availability of remedies for aggrieved parties under the CGST Act/U.P. GST Act.