2023 (2) TMI 878 - HC - GST

GST appeals can be filed within three months of Tribunal constitution or order communication, whichever is later

The Bombay HC disposed of writ petitions challenging GST appellate orders where the Appellate Tribunal was not yet constituted. The court noted that ... Validity of order passed in appeal by Appellate authority under Central Goods and Services Act, 2017 - Appellate Tribunal is not yet constituted - large pendency of such cases - HELD THAT:- What emerges from the Circular No. 132/2/2020-GST dated 18 March 2020 and Affidavit filed by the Chairman of the Board is that the appeal to the Appellate Tribunal can be filed within three months (six months in the case of Appeals by the Government) from the date of the communication of the order or date on which the President or State President, as the case may be, of the Appellate Tribunal enters office, whichever is later. As of date, there are no positive statement from the respondents to the exact time or date on which the contingency provided in Clause 4.2, that is, President or State President entering office, would occur. The question is whether the Petitions need to be kept pending in this Court. In most of the Petitions filed on the ground that the Tribunal is unavailable, this Court has granted interim protection - The Chairman of the Board, in the affidavit, has indicated that no hardship would be caused to the taxpayers because of the non-constitution of the Tribunal. Reading the affidavit along with Circular, it is clear that the Government does not intend that taxpayers are prejudiced for want of the Tribunal. With that intent, the period of limitation has been extended. The appealable orders (to the Tribunal) would not be implemented till the Tribunal becomes functional. That being the position, the writ petitions do not need to remain pending in this Court. Some time after the tribunal becomes functional as above can be given - Petition disposed off. Issues Involved:1. Challenge to the appellate authority's order under the Central Goods and Services Act, 2017.2. Non-constitution of the Goods and Services Tax Appellate Tribunal (GSTAT).3. Extension of the limitation period for filing appeals due to the non-constitution of GSTAT.4. Interim protection for taxpayers due to the non-constitution of GSTAT.5. Implementation of appealable orders.Detailed Analysis:1. Challenge to the appellate authority's order under the Central Goods and Services Act, 2017:The petitioners have challenged the orders passed by the appellate authority under the Central Goods and Services Act, 2017. The Act provides a mechanism for appeals, with Chapter XVIII detailing the appeals and review processes. Orders under the Act are appealable to the appellate authority under Section 107, and further appealable to the Appellate Tribunal under Section 112.2. Non-constitution of the Goods and Services Tax Appellate Tribunal (GSTAT):The petitions were filed under Article 226 of the Constitution of India on the ground that the GSTAT has not yet been constituted. The court noted the large pendency of such cases and directed the respondents to file a reply affidavit regarding the non-constitution of the Appellate Tribunal. The Chairman of the Central Board of Indirect Taxes and Customs (the 'Board') filed an affidavit detailing the steps taken and the delays caused by legal challenges and subsequent judicial directions.3. Extension of the limitation period for filing appeals due to the non-constitution of GSTAT:The Board issued Circular No. 132/2/2020-GST dated 18 March 2020, clarifying that due to the non-constitution of the Appellate Tribunal, the prescribed time limit to file an appeal will be counted from the date the President or State President of the Tribunal enters office. The Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019, extends the period for filing appeals to three months (six months for government appeals) from the date of communication of the order or the date the President or State President enters office, whichever is later.4. Interim protection for taxpayers due to the non-constitution of GSTAT:The court noted that in most petitions filed due to the unavailability of the Tribunal, interim protection had been granted. The affidavit from the Chairman of the Board and the Circular indicated that the government does not intend for taxpayers to be prejudiced due to the non-constitution of the Tribunal. Therefore, the period of limitation has been extended, and the appealable orders will not be implemented until the Tribunal becomes functional.5. Implementation of appealable orders:The court suggested that the Respondent-Board issue instructions to incorporate Clause 4.2 of the Circular dated 18 March 2020 in each order appealable to the Appellate Tribunal. This would guide aggrieved parties and reduce unnecessary litigation. The court disposed of the petitions with the following directions:a) The period for filing the appeal is extended as indicated in Clause 4.2 of the Circular dated 18 March 2020.b) The impugned order will not be given effect until two weeks after the period prescribed for filing an appeal under Clause 4.2 is over.Conclusion:The court disposed of the writ petitions, keeping all contentions of the parties open, including any challenge to the validity of the provisions. The petitions were disposed of with the clarification that the period for filing appeals is extended, and the impugned orders will not be implemented until the Tribunal becomes functional.