TMI Blog2023 (8) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... ention of the legislature, which is to aid access to justice, which itself is a fundamental right guaranteed under the Constitution. When it comes to right of an appeal, as guaranteed by a statutory provision, such right needs to be made effective and meaningful. It cannot be frustrated by shackles of complex procedural formalities. 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) LIMITED VERSUS THE STATE OF MAHARASHTRA ORS. [ 2021 (12) TMI 477 - SUPREME COURT] 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. In VVF India Ltd., 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JJ For the Petitioner : Mr. Rahul Thakar, i/b. Mr. C.B. Thakar For the State : Smt. Jyoti Chavan, AGP, in WPL/17026/2023, WPL/17031/2023 and WPL/17048/2023. Smt. Jyoti Chavan, AGP, a/w. Mr. Dushant Kumar, AGP for State in WPL/17039/2023 and WPL/17050/2023. Mr. Manish Upadhye, AGP for State in WPL/17037/23, WPL/17058/2023 and WPL/17059/2023, Smt. Jyoti Chavan, AGP, a/w. Mr. Himanshu Takke, AGP for State in WPL/17043/2023. For the U.O.I : Mr. Karan Adik,. ORAL JUDGMENT (PER G.S. KULKARNI, J.) The Petitioner in these proceedings under Article 226 of the Constitution of India has approached this Court making a grievance in regard 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under sub-section (1), subject to the condition that the grounds relied upon for such tax periods other than those covered under sub-section (1) are the same as are mentioned in the earlier notice. (5) The person chargeable with tax may, before service of notice under sub-section (1) or, as the case may be, the statement under sub-section (3), pay the amount of tax along with interest payable thereon under section 50 on the basis of his own ascertainment of such tax or the tax as ascertained by the proper officer and inform the proper officer in writing of such payment. (6) The proper officer, on receipt of such information, shall not serve any notice under sub-section (1) or, as the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order under sub-section (2), the authorised officer makes an application to the Appellate Authority, such application shall be dealt with by the Appellate Authority as if it were an appeal made against the decision or order of the adjudicating authority and such authorised officer were an appellant and the provisions of this Act relating to appeals shall apply to such application. (4) The Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or six months, as the case may be, allow it to be presented within a further period of one month. (5) Every appeal under this section shall be in such form and shall 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stayed by an order of a court or Tribunal, the period of such stay shall be excluded in computing the period of one year. (14) On disposal of the appeal, the Appellate Authority shall communicate the order passed by it to the appellant, respondent and to the adjudicating authority. (15) A copy of the order passed by the Appellate Authority shall also be sent to the jurisdictional Commissioner or the authority designated by him in this behalf and the jurisdictional Commissioner of State tax or Commissioner of Union Territory Tax or an authority designated by him in this behalf. (16) Every order passed under this section shall, subject to the provisions of section 108 or section 113 or section 117 or section 118 be final and binding on the parties. (emphasis supplied) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal, needs to be considered. He submits that the Petitioner, hence, ought to be permitted to file an appeal, on the portal being made available, which ought not to be closed or, in the alternative, manual filing of an appeal, being appropriately registered in the system ought to be permitted. It is his submission that in the situations in hand, such technicalities imbeded in the electronic system governing filing of appeals cannot defeat a statutory remedy of an appeal and render the assessee remediless. 5. On the other hand, Ms. Chavan, learned AGP for the Revenue, has argued on the effect the provisions of Section 73(5) and Section 107(6) of the CGST Act would manifest. It is her contention that the Petitioner would not be correct in bringing about an interplay of both the provisions as they stand distinct 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 mand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of tax, which is voluntarily deposited by the Petitioner, under protest under sub-section (5) of Section 73 of the CGST Act, be permitted to be reckoned for the purposes of a pre-deposit for compliance of sub-section (6) of Section 107 of the CGST Act. In our opinion, such request of the Petitioner is not something, which is opposed to law, inasmuch as, on a holistic reading of Section 73 of the CGST Act, it can be said that an amount deposited under sub-section (5) Section 73 of the CGST Act is not an amount, which is deposited in pursuance of any demand or any assessment order. It is certainly a voluntary deposit and which is subject to all the contentions of the assessee. Also such deposit would be accounted in the event of any the liability of the assessee to pay tax, and would be integral to the assessment. 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 applicabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section (6A) of Section 26 of the MVAT Act, the Supreme Court observed thus: 11. While analyzing the rival submissions, it is necessary to note, at the outset, that, under the provisions of Section 26(6A), the aggregate of the amounts stipulated in the sub-clauses of the provision has to be deposited and proof of payment is required to be produced together with the filing of the appeal. Both clauses (b) and (c) employ the expression an amount equal to ten per cent of the amount of tax disputed by the appellant . The entirety of the undisputed amount has to be deposited and 10 per cent of the disputed amount of tax is required to be deposited by the appellant. In the present case, the appellant disputes the entirety of the tax demand. Consequently, on the plain language of the statute, 10 per cent of the entire disputed 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 legislatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd set aside the impugned judgment and order of the High Court of Judicature at Bombay dated 8 November 2019 in Writ Petition No 8834 of 2018. The appeal shall stand restored to the file of the appellate authority. (emphasis supplied) Thus, adverting to the above principles as laid down by the Supreme Court in VVF India Ltd. (supra), we are of the clear opinion that the principles as laid down in such decision squarely apply to the provisions of sub-section (6) of Section 107 of the CGST Act. 11. For the above reasons, the voluntary deposit as made under protest by the Petitioner under the provisions of sub-section (5) of Section 73 of the CGST Act, cannot be excluded from consideration for the purpose of compliance as mandated by sub-section (6) of Section 107 of the CGST Act. We, accordingly, allow the petitions by the following order: ORDER (i) The Petitioner is permitted to file an appeal under Section 107 of the CGST Act either by the electronic mode or by manual filing within a period of two weeks from the day a copy of this order is made available. (ii) The Appellate Authority is directed to register compliance of the provisions of sub-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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