Demand stayed as entire tax demand already paid and Appellate Tribunal is not yet constituted

[CA Bimal Jain]

The Hon’ble Orissa High Court in NALINIKANTA BARIK VERSUS COMMISSIONER OF CT & GST, BANIJYAKAR BHAWAN, CUTTACK AND ORS. - 2023 (7) TMI 249 - ORISSA HIGH COURT held that if the deposit of tax had been already made and the Appellate Tribunal is not yet constituted then the rest of the demand shall remain stayed.

Facts:

Nalinikanta Barik (“the Petitioner”) filed an appeal under section 107(1) of the Central Goods and Services Tax Act, 2017 (“the CGST Act”) to the Appellate Authority which was rejected vide Order dated April 29, 2023 (“the Impugned Order”) and further a demand of tax and penalty was levied upon the Petitioner.

Aggrieved by the Impugned Order, the Petitioner decided to file an appeal before the Appellate Tribunal which is not yet constituted. Thus, the Petitioner filed the present writ petition.

The Petitioner contended that it is not liable to pay the tax and penalty as determined in the Impugned Order as the Appellate Tribunal had not been constituted, and the entire tax demand was already deposited by the Petitioner.

The Revenue Department (“the Respondents”) contended that if the Petitioner wanted to avail the remedy by preferring appeal before the Appellate Tribunal, then the Petitioner is liable to deposit 20% of the balance disputed tax as pre-deposit for the consideration of his appeal.

Issue:

Whether the Petitioner is liable to deposit the tax demand if the tax was entirely paid and the Appellate Tribunal is not yet constituted?

Held:

The Hon’ble Orissa High Court in NALINIKANTA BARIK VERSUS COMMISSIONER OF CT & GST, BANIJYAKAR BHAWAN, CUTTACK AND ORS. - 2023 (7) TMI 249 - ORISSA HIGH COURT held as under:

• Observed that, the Petitioner wanted to avail the remedy under the provisions of law by approaching the Appellate Tribunal which is not yet constituted.
• Held that, as an interim measure, if the deposit of tax has been already made and the Appellate Tribunal is not yet constituted then the rest of the demand shall remain stayed during the pendency of the writ petition.
• Listed the matter along with M/S PRAVAT KUMAR CHOUDHURY, CUTTACK VERSUS THE ADDL. STATE TAX OFFICER, CT & GST, CUTTACK-II CIRCLE AND ORS. - 2023 (4) TMI 591 - ORISSA HIGH COURT for the next date.

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