2024 (7) TMI 1096 - HC - GST

Declining to grant any interim order - GST tribunal has yet to be constituted - requirement of 20% mandatory pre-deposit - HELD THAT - It may be true that under the statute the aggrieved person who approaches the tribunal would be entitled to make a prayer for stay subject to payment of 20% of the disputed tax - In the instant case, it appears to be not in dispute that more than 20% has been recovered, nonetheless the writ petition has been filed before this court and that has been entertained on the ground that the tribunal is not functional. In the facts and circumstances of this case, the appellants could not have taken such a stand more particularly because the 2nd appellant, Uttam Kumar Bagaria is one of the partners of the partnership firm/ Eastern Traders. The court considered the facts and circumstances and declined to exercise any discretion in granting an interim order - no grounds have been made to interfere with the said order passed by the learned Single Bench - Appeal dismissed.

Summary

Issues:
1. Appeal against denial of interim order by Single Bench.
2. Challenge to appellate authority's decision.
3. Entitlement to interim order due to non-functional GST tribunal.
4. Recovery exceeding 20% mandatory pre-deposit.
5. Dispute over false averments in stay petition.
6. Consideration of circumstances for granting interim order.

Analysis:
1. The appeal before the High Court challenged the Single Bench's refusal to grant an interim order, directing the filing of an affidavit-in-opposition in the writ petition. The writ petition stemmed from contesting an appellate authority's decision that upheld an adjudicating authority's order.

2. The appellants argued that the writ petition was based on the non-existence of a functional GST tribunal, suggesting that filing an appeal before the tribunal would require only a 20% pre-deposit for an interim order to halt further recovery actions by the department.

3. Despite the department already recovering an amount exceeding the 20% pre-deposit, the writ petition was entertained by the court on the grounds of the tribunal's non-functionality. The court clarified that it is not bound by the statutory principle applicable to the tribunal when considering interim orders.

4. The government counsel highlighted alleged false averments in the stay petition, pointing out discrepancies regarding the appellants' knowledge, particularly concerning one of the partners involved. The court noted the lack of grounds to interfere with the Single Bench's decision to deny an interim order.

5. The court dismissed the appeal, directing the respondent authorities to file their affidavit-in-opposition by a specified date. The writ petition was scheduled for listing before an appropriate Bench in June 2024, emphasizing the importance of factual considerations in deciding on interim relief.

6. In conclusion, the judgment upheld the Single Bench's decision, emphasizing the importance of factual accuracy and proper legal procedures in seeking interim orders and addressing disputes related to recovery actions and tribunal functionality.