2023 (7) TMI 249 - HC - GST

Maintainability of appeal - non-constitution of Second Appellate Tribunal - 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 verification of deposit being made as stated by the learned counsel for the Petitioner, 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 this case are the constitution of the Second Appellate Tribunal, challenge to the 1st appellate order under GST Act, delay in preferring the appeal, liability to pay tax and penalty, and the interim stay of the demand during the pendency of the writ petition.

Constitution of Second Appellate Tribunal:
The writ petition was entertained due to the absence of the Second Appellate Tribunal. The petitioner challenged the 1st appellate order dated 29.04.2023, contending that it contravened sub-sections (1) & (4) of Section 107 of the GST Act. The petitioner had already deposited 10% of the demanded tax amount before the first appellate authority, and the entire tax demand was subsequently deposited. As there was no second appellate forum constituted, the Court decided to entertain the writ petition.

Challenge to 1st Appellate Order:
The petitioner filed the writ petition challenging the 1st appellate order passed by the Additional Commissioner of State Tax, Territorial Range, Balasore. The order rejected the appeal filed under sub-Section (1) of Section 107 of the Odisha Goods and Services Tax Act, 2017. The petitioner argued that they were not liable to pay the tax and penalty, and since the Second Appellate Tribunal had not been constituted, the Court should entertain the writ petition.

Delay in Preferring Appeal and Liability:
The Additional Standing Counsel contended that there was a delay in preferring the appeal, and the Court might not be able to condone the delay beyond four months. It was argued that the petitioner was liable to pay the tax and should pay 20% of the balance disputed tax for consideration of its appeal by the 2nd appellate tribunal. The petitioner's remedy under the law to approach the 2nd appellate tribunal was highlighted, subject to the verification of the deposit made.

Interim Stay of Demand:
As an interim measure, subject to the verification of the deposit made by the petitioner, the rest of the demand was stayed during the pendency of the writ petition. An Interlocutory Application (I.A.) was disposed of, and the matter was listed along with another case on the date fixed therein for further proceedings.