2023 (5) TMI 168 - HC - GST

Rejection of appeal - writ petition is being entertained only because the Second Appellate Tribunal has not yet been constituted - contravention to sub-sections (1) (4) of Section 107 of the GST Act - HELD THAT - Issue notice to the opposite parties. Since Mr. Sunil Mishra, learned Addl. Standing counsel for the Department accepts notice for the Opposite parties, let required number of copies of the writ petition be served on him within three working days. Reply be filed within two weeks and rejoinder thereto, if any, be filed before the next date - 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 under GST Act, delay in appealing, constitution of 2nd appellate tribunal.

Summary:

Challenge to 1st Appellate Order:
The petitioner filed a writ petition challenging the 1st appellate order dated 17.03.2023 passed by the Joint Commissioner of State Tax (Appeal), Balasore. The authority did not admit the appeal, citing contravention to sub-sections (1) & (4) of Section 107 of the GST Act. The petitioner contended that they are not liable to pay the tax and penalty. The 2nd appellate tribunal has not yet been constituted, hence the writ petition was entertained.

Delay in Appealing:
The Standing Counsel argued that there was 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 discretion to condone the delay beyond one month after three months from the date of communication of the order. The petitioner was required to pay 20% balance disputed tax for consideration of its appeal by the 2nd appellate tribunal.

Constitution of 2nd Appellate Tribunal:
The petitioner sought to approach the 2nd appellate tribunal, which had not been constituted yet. As an interim measure, the court ordered the petitioner to deposit the entire tax demand within fifteen days. The rest of the demand was stayed during the pendency of the writ petition.

This matter will be listed after two weeks along with another related case.