2023 (4) TMI 591 - HC - GST

GST Tax Assessment Challenged: Partial Relief Granted with 10% Tax Deposit and Penalty Stay Pending Further Review

M/s Pravat Kumar Choudhury, Cuttack Versus The Addl. State Tax Officer, CT & GST, Cuttack-II Circle and Ors.

The HC partially allowed the writ petition challenging a GST tax assessment. The court stayed penalty and interest, directing the petitioner to deposit ... Maintainability of petition - It is contended that the petitioner is willing to deposit 40% of the remaining amount of tax before the authority and as there is no second appellate forum, this Court should entertain this writ petition - Condonation of delay in filing appeal - Attachment of Bank Accounts of petitioner - HELD THAT:- 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 and, as such, learned counsel for the petitioner informs the Court that at the stage of first appeal, 10% of the tax has already been deposited, as an interim measure, it is directed that the penalty and interest amount demanded by the authority shall remain stayed during the pendency of the writ petition, subject to the petitioner depositing the demanded tax amount by the authority within two weeks. In order to facilitate the petitioner making the aforesaid deposit, the attachment of the petitioner’s bank account shall stand lifted forthwith. Application disposed off. Issues involved:The issues involved in the judgment are the challenge to the 1st appellate order under the GST Act, delay in preferring the appeal, constitution of the 2nd appellate tribunal, liability to pay tax and penalty, and the stay of penalty and interest amount.Challenge to 1st Appellate Order:The petitioner filed a writ petition challenging the 1st appellate order dated 24.02.2023 passed by the Joint Commissioner of State Tax (Appeal), Cuttack, which rejected the appeal under subsections (1) & (4) of Section 107 of the GST Act. The petitioner contended that they are not liable to pay the tax and penalty, and due to the absence of the 2nd appellate tribunal, this Court should entertain the writ petition.Delay in Preferring the Appeal:The Addl. Standing Counsel argued that there is 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 the discretion to condone the delay beyond one month after three months from the date of the impugned order. The petitioner, if willing to appeal before the 2nd appellate tribunal, is required to pay 20% of the balance disputed tax.Constitution of 2nd Appellate Tribunal:The petitioner sought to avail the remedy by approaching the 2nd appellate tribunal, which has not yet been constituted. As an interim measure, 10% of the tax has already been deposited at the first appeal stage. The Court directed that the penalty and interest amount demanded by the authority shall remain stayed during the pendency of the writ petition, subject to the petitioner depositing the demanded tax amount within two weeks. The attachment of the petitioner's bank account was lifted to facilitate the deposit.Conclusion:The Court issued notice to the opposite parties, and the Addl. Standing Counsel accepted the notice on behalf of the Department. The matter was listed for further proceedings after two weeks, along with other related cases. The interim application was disposed of, and timelines were set for filing replies and rejoinders.