9911796707
TMI Blog2023 (8) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... to the functionality of the GSTN Portal, which according to the Petitioner, has prevented it from lodging/filing of a statutory appeal under the provisions of Section 107 of the Central Goods and Services Tax Act, 2017 (for short "the CGST Act"), in a situation wherein the Petitioner had intended to take the benefit of the voluntary deposit of the CGST made by the Petitioner under the provisions of sub-section (5) of Section 73 of the CGST Act, in relation to the compliance of the provisions of sub-section (6) of Section 107 of the CGST Act. Such provision mandates that no appeal shall be filed under sub-section (1) of Section 107 of the CGST Act, unless the appellant has paid in full such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as admitted by him; and a sum equal to ten per cent of the remaining amount of tax in dispute arising from the said order, in relation to which an appeal is intended to be preferred. 2. To appreciate the contentions as urged by the Petitioner, it would be necessary to note the provisions of Section 73 of the CGST Act, which provide for determination of tax not paid or short paid or erroneously refunded, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case may be, the statement under sub-section (3), in respect of the tax so paid or any penalty payable under the provisions of this Act or the rules made thereunder. (7) Where the proper officer is of the opinion that the amount paid under sub-section (5) falls short of the amount actually payable, he shall proceed to issue the notice as provided for in sub-section (1) in respect of such amount which falls short of the amount actually payable. (8) Where any person chargeable with tax under sub-section (1) or sub-section (3) pays the said tax along with interest payable under section 50 within thirty days of issue of show cause notice, no penalty shall be payable and all proceedings in respect of the said notice shall be deemed to be concluded. (9) The proper officer shall, after considering the representation, if any, made by person chargeable with tax, determine the amount of tax, interest and a penalty equivalent to ten per cent. of tax or ten thousand rupees, whichever is higher, due from such person and issue an order. (10) The proper officer shall issue the order under sub-section (9) within three years from the due date for furnishing of annual return for the fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be verified in such manner as may be prescribed. (6) No appeal shall be filed under sub-section (1), unless the appellant has paid- (a) in full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him; and (b) a sum equal to ten per cent of the remaining amount of tax in dispute arising from the said order subject to a maximum of twenty-five crore rupees, in relation to which the appeal has been filed. (7) Where the appellant has paid the amount under sub-section (6), the recovery proceedings for the balance amount shall be deemed to be stayed. (8) The Appellate Authority shall give an opportunity to the appellant of being heard. (9) The Appellate Authority may, if sufficient cause is shown at any stage of hearing of an appeal, grant time to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (10) The Appellate Authority may, at the time of hearing of an appeal, allow an appellant to add any ground of appeal not specified in the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The Petitioner has contended that for the purpose of the pre-deposit for an appeal intended to be filed by the Petitioner under Section 107 as per sub-section (6) of Section 107 of the CGST Act, the amount as deposited by the Petitioner under sub-section (5) of Section 73 of the CGST Act needs to be accepted towards fulfillment of such pre-deposit, as the said amount is already made, it cannot be contended by the Revenue, that such deposit is not available, when it comes to the compliance of sub-section (6) of Section 107 of the CGST Act. It is contended that, in a given circumstance, it may be unjust and/or unwarranted that the assessee is required to shell out an additional amount so as to comply the mandate of pre-deposit as per sub-section (6) of Section 107 of the CGST Act. This, of course, would depend in facts and circumstances of the case. It is submitted that in any event, such adjustment of the amount voluntarily deposited needs to be accepted, as the assessee has not sought the refund of such amount, but is seeking an adjustment of the said amount towards the pre-deposit for filing an appeal under Section 107 of the CGST Act. It is contended that it would be also unj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istinct and operate differently. According to Ms. Chavan, such an adjustment of the payment of tax of a voluntary deposit to be utilised for rectifying the amount of predeposit cannot be permitted. The legislature itself has now made the remedy of an appeal more effective by providing for a reasonable predeposit of the tax as sub-section (6) of Section 107 of the CGST Act would mandate. It is, thus, contended that the Petitioner ought not to have raised such plea and not deposited the amount of tax as per the requirement of the provisions of sub-section (6) of Section 107 of the CGST Act. 6. Mr. Adik, learned Counsel for the Union of India, would also support the submissions as made by Ms. Chavan, learned AGP for the Revenue. He would submit that the electronic portal has application throughout the country and such a prayer as made by the Petitioner would disturb as to what is prevalent. Thus, such plea of an adjustment of the portal to be made available for such category of the assessee, who intends to take benefit of the voluntary deposit of taxes under sub-section (5) of Section 73 of the CGST Act, ought not to be accepted. He would also, therefore, submit that the petition be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. Thus, when it comes to the compliance of sub-section (6) of Section 107 of the CGST Act, namely, the mandatory payment of the tax, being a condition precedent, mandated in terms of the provisions of sub-sections (6)(a) and (6)(b) of Section 107 of the CGST Act, in our opinion the principle as laid down in Supreme Court in VVF (India) Ltd. (supra) would become applicable considering that the provisions of the CGST Act on pre-deposit are not too different from the provisions of the MVAT Act, which fell for consideration of the Supreme Court. 10. In VVF India Ltd. (supra), the Supreme Court was considering the correctness of the view of the High Court on the interpretation of Section 26(6A) of the MVAT Act. Sub-section (6A) of Section 26 of the MVAT Act is a provision almost in similar terms to sub-section (6) of Section 107 of the CGST Act. Such provision inter alia provided that no appeal against an order passed on or after the commencement of the Maharashtra Tax Laws (Levy Amendment and Validation) Act, 2017 shall be filed before the appellate authority, unless it is accompanied by the proof of payment of an aggregate of the amounts as applicable and as set out in clauses (a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puted tax liability would have to be deposited in pursuance of Section 26(6A). The amount which has been deposited by the appellant anterior to the order of assessment cannot be excluded from consideration, in the absence of statutory language to that effect. A taxing statute must be construed strictly and literally. There is no room for intendment. If the legislature intended that the protest payment should not be set off as the deposit amount, then a provision would have to be made to the effect that 10 per cent of the amount of tax in arrears is required to be deposited which is not the case. Justice Bhagwati in A.V Fernandez v. State of Kerala, AIR 1957 SC 657 writing for a Constitution Bench, elucidated the principle of strict interpretation in construing a taxing statue as follows: "29. In construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law. If the revenue satisfies the court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case of not covered within the four corners of the provisions of the taxing statue, no tax can be imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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