2022 (6) TMI 764 - HC - GST

Maintainability of petition - availability of alternative remedy of appeal - requirement to comply with the pre-deposit - HELD THAT - The submission of the learned advocate for the appellant appears to be reasonable because if the appellant had preferred a statutory appeal, he would be statutorily required to pre-deposit 10% of the disputed amount of tax and admittedly close to 20% of the disputed amount of tax has already been recovered. That apart, if any recovery proceeding has been initiated prior to 28th May, 2022, i.e. prior to expiry of the period of limitation for filing a statutory appeal, then such recoveries will have no sanction of law as it would, in effect make the appellate remedy infructuous. Let a soft copy of the affidavit-in-opposition be shared with the learned advocate for the appellant not later than 19th June, 2022 and if the appellant desires to file a reply, the same should be filed not later than 22nd June, 2022. It is thereafter the matter can be listed before the Learned Single Bench for being heard and disposed of. Petition disposed off.

Summary

Issues:
1. Condonation of delay in preferring the appeal.
2. Interim order in an intra-Court appeal challenging a CGST/SGST Act order.

Condonation of Delay:
The judgment addressed an application for condonation of delay of 37 days in filing an appeal. The Court, after hearing both parties, allowed the application, stating that sufficient cause was shown for the delayed presentation of the appeal.

Interim Order in Intra-Court Appeal:
The intra-Court appeal was against an order under section 74(9) of the CGST/SGST Act. The appellant sought an interim order protecting their interests due to ongoing recovery actions by the department. The Court noted that the single Bench did not reject the appellant's prayer entirely and deemed the affidavit-in-opposition necessary before making a decision. The appellant argued that a significant amount had already been recovered, making further recovery prejudicial. The Court agreed that until the writ petition was heard and disposed of, no additional recovery should occur. The respondents were directed to file the affidavit-in-opposition by a specified date, with provisions for the appellant to reply if needed. The matter was to be listed before the Single Bench for further proceedings.

The judgment concluded by disposing of the writ appeal and related application, granting liberty to the advocates to mention the matter before the Single Bench for listing, and providing no costs. The Court ordered the expeditious provision of a certified copy of the order upon formalities' compliance.