2023 (6) TMI 1190 - HC - GST

Maintainability of appeal - contravention to sub-sections (1) (4) of Section 107 of the GST Act - non-constitution of 2nd appellate tribunal - It is contended that the petitioner has already deposited 10% of the demanded tax amount before the first appellate authority and as there is no second appellate forum, this Court should entertain this writ petition - 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 four weeks from today, the rest of the demand shall remain stayed during the pendency of the writ petition. Application disposed off.

Summary

Issues involved: Challenge to 1st appellate order under GST Act, delay in preferring appeal, constitution of 2nd appellate tribunal.

Summary:

Challenge to 1st appellate order under GST Act:
The petitioner filed a writ petition challenging the 1st appellate order dated 29.04.2023 passed by the Joint Commissioner of State Tax (Appeal), which did not admit the appeal on the grounds of contravention to sub-sections (1) & (4) of Section 107 of the GST Act. The petitioner contended that they are not liable to pay the tax and penalty, and since the 2nd appellate tribunal has not yet been constituted, the High Court should entertain the writ petition.

Delay in preferring appeal:
The Standing Counsel for Revenue argued that there is a delay in preferring the appeal, and the Court may not be able to condone the delay beyond four months. It was highlighted that the appellate authority does not have the 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 they would need to pay 20% of the balance disputed tax if they wish to appeal before the 2nd appellate tribunal.

Constitution of 2nd appellate tribunal:
As an interim measure, subject to the petitioner depositing the entire tax demand within four weeks, the rest of the demand shall remain stayed during the pendency of the writ petition. The Court disposed of the I.A. and listed the matter along with another case on the fixed date.