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2023 (12) TMI 732 - HC - GSTMaintainability of petition - non-constitution of Tribunal - availability of alternative remedy - HELD THAT - Paragraph 4.3 of Circular dated 26th May 2020 records that when the assessee intends to take recourse to an alternate remedy of an appeal, after the Tribunal is constituted, the prescribed time limit to make an application to the Appellate Tribunal would be counted from the date on which President or the State President enters office - Further paragraph 5 of the said circular provides that a declaration is required to be made by such party and submitted to the jurisdictional Tax Officer, stating that an appeal is proposed to be filed under Section 112 of the CGST Act within a period of 15 days from the communication of the said order. This petition is disposed off by permitting the petitioner to take recourse to an alternate remedy of an appeal as provided in the Circular dated 26th May 2020, and more particularly in terms of paragraph 4.3 read with paragraph 5, thereof, subject to the declaration to be made by the petitioner to the jurisdictional Tax Officer, in terms of Annexure-I to the said Circular, which be submitted within a period of 15 days from today.
Issues involved:
The petition challenges an order passed by the Divisional Authority, seeking to appeal before the GST Tribunal once constituted, with a concern about the limitation period for filing such an appeal. Judgment Details: Issue 1: Challenge to Divisional Authority's Order The petition under Article 226 of the Constitution of India challenges an order dated 26th June 2023 by the Divisional Authority. The petitioner aims to appeal before the GST Tribunal, once constituted, as per Section 112 of the CGST Act. The GST Tribunal is yet to be formed, raising concerns about the limitation period for filing the appeal. Issue 2: Circular Addressing Tribunal Constitution A circular dated 26th May 2020 issued by the Commissioner of State Tax provides clarification regarding the situation arising from the non-constitution of the Tribunal. Paragraph 4.3 of the circular specifies that the time limit for applying to the Appellate Tribunal will commence from the date the President or State President assumes office. Issue 3: Declaration Requirement for Filing Appeal Paragraph 5 of the circular mandates a declaration to be made by the party intending to file an appeal under Section 112 of the CGST Act within 15 days from the communication of the order. Failure to submit this declaration within the stipulated time may lead to the presumption that the taxpayer is not willing to file an appeal. Judicial Precedent Reference is made to the case of Gulf Oil Lubricants India Ltd. Vs. Joint Commissioner of State Tax, where a Co-ordinate Bench permitted the petitioner to approach the Appellate Tribunal based on the Circular issued by the State Government, thereby addressing the limitation issue. Conclusion The petition is disposed of by allowing the petitioner to seek an alternate remedy of appeal as per the Circular dated 26th May 2020. The petitioner is required to submit a declaration to the jurisdictional Tax Officer within 15 days. All contentions on the merits of the proposed proceedings before the Tribunal are left open for further consideration. Disposed of with no costs.
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