2023 (9) TMI 41 - HC - GST

Maintainability of petition - appeal rejected on the ground that 2nd appellate tribunal not yet been constituted - petitioner has already deposited 10% of the demanded tax amount before the first appellate authority and as there is no second appellate forum - 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 fifteen days 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 u/s 107 of GST Act, delay in preferring appeal, constitution of 2nd appellate tribunal.

Summary:
1. The writ petition challenges the 1st appellate order dated 02.06.2023, contending that it contravenes sub-sections (1) & (4) of Section 107 of the GST Act. The petitioner, represented by Mr. A.K. Biswal, argues against liability for tax and penalty, as the 2nd appellate tribunal has not yet been constituted. The petitioner has deposited 10% of the demanded tax amount before the first appellate authority.

2. Mr. Diganta Dash, representing the Department, argues that there is a delay in preferring the appeal and requests the Court not to condone the delay beyond four months. He asserts that the petitioner is liable to pay the tax and, if opting to appeal before the 2nd appellate tribunal, must pay 20% of the balance disputed tax.

3. The Court issues notice to the opposite parties and directs the Department to file a reply within two weeks. An interim measure is granted, allowing the petitioner to approach the 2nd appellate tribunal once constituted, upon depositing the entire tax demand within fifteen days. The rest of the demand is stayed during the pendency of the writ petition.

4. The I.A. is disposed of, and the matter is listed along with another case for further proceedings.