2023 (7) TMI 249 - HC - GST

Taxpayer Challenges GST Order Amid Appellate Tribunal Absence, Seeks Relief with Partial Tax Deposit Under Section 107

Nalinikanta Barik Versus Commissioner of CT & GST, Banijyakar Bhawan, Cuttack and Ors.

The HC entertained a writ petition challenging a GST tax order due to the absence of a Second Appellate Tribunal. The petitioner contested the first ... Maintainability of appeal - non-constitution of Second Appellate Tribunal - contravention to sub-sections (1) & (4) of Section 107 of the GST Act - HELD THAT:- 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 verification of deposit being made as stated by the learned counsel for the Petitioner, the rest of the demand shall remain stayed during the pendency of the writ petition. Application disposed off. The petition challenges the 1st appellate order dated 29.04.2023 which 'has not admitted the appeal' as contravening sub-sections (1) & (4) of Section 107 of the GST Act; the petitioner contends non-liability for tax and penalty and states 10% of the demanded tax was deposited before the first appellate authority and subsequently the entire tax demand has been deposited. The court entertained the writ because the Second Appellate Tribunal has not yet been constituted. The department argued delay in preferring the appeal cannot be condoned beyond four months, particularly since the 'appellate authority has not been vested with discretion to condone the delay beyond one month after lapse of three months from the date of communication of order impugned therewith.' Issue was noticed to the department; reply and rejoinder timelines fixed. As an interim measure, subject to verification of the asserted deposit, 'the rest of the demand shall remain stayed during the pendency of the writ petition.' I.A. disposed and matter listed further.