2024 (1) TMI 1244 - HC - GST

Maintainability of appeal - availability of alternative remedy - 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 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:
The issues involved in this case are the challenge to the 1st appellate order under the GST Act, delay in preferring the appeal, constitution of the 2nd appellate tribunal, liability to pay tax and penalty, and the interim measure for depositing the tax demand.

Challenge to 1st Appellate Order:
The petitioner filed a writ petition challenging the 1st appellate order which rejected the appeal under sub-Section (1) of Section 107 of the Odisha Goods and Services Tax Act, 2017. The petitioner contended that they are not liable to pay the tax and penalty. The 2nd appellate tribunal has not yet been constituted, so the petitioner sought relief through the writ petition.

Delay in Preferring Appeal:
The Standing Counsel contended that there is a delay in preferring the appeal, and the Court may not be able to condone the delay beyond four months. 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 is required to pay 20% balance disputed tax if they want to appeal before the 2nd appellate tribunal.

Constitution of 2nd Appellate Tribunal:
Since the 2nd appellate tribunal has not been constituted, the petitioner sought interim relief by depositing the entire tax demand within fifteen days. The Court stayed the rest of the demand during the pendency of the writ petition as an interim measure to allow the petitioner to avail the remedy under the provisions of the law.

Liability to Pay Tax and Penalty:
The Standing Counsel argued that the petitioner is liable to pay the tax, and in case of appealing before the 2nd appellate tribunal, they must pay the balance disputed tax. The petitioner had already deposited 10% of the demanded tax amount before the 1st appellate authority.

Interim Measure for Deposit of Tax Demand:
As an interim measure, the Court directed the petitioner to deposit the entire tax demand within fifteen days to avail the remedy under the law. The rest of the demand was stayed during the pendency of the writ petition. The interim application was disposed of, and the matter was listed for further proceedings.