2024 (2) TMI 174 - HC - GST

Interim relief granted; appeal against GST order held maintainable u/s 112, to await tribunal constitution

HC held that the impugned order is appealable under Section 112 of the West Bengal GST Act corresponding to the CGST Act and that the proper remedy lies ... Extension of limitation due to non-constitution of the Appellate Tribunal - interim protection against giving effect to an order pending filing of appeal - maintainability of writ petition where statutory appellate remedy is unavailableMaintainability of writ petition where statutory appellate remedy is unavailable - Writ petition could be entertained because the appellate tribunal under the GST enactments had not been constituted and the statutory remedy was, for practical purposes, unavailable. - HELD THAT: - The Court noted that the impugned order is appealable to the Appellate Tribunal but that the Tribunal has not been constituted. It applied the settled principle that when the statutory remedy is not practically available a writ petition is maintainable and therefore proceeded to entertain the petition limited to protecting the petitioner during the interregnum. The Court observed the Government circular and prior judicial recognition of hardship caused by non-constitution of the Tribunal and concluded that limited relief was warranted to prevent prejudice to the taxpayer while preserving the statutory appeal once the Tribunal becomes functional. [Paras 7, 8, 13, 14]Writ petition entertained for limited purpose of granting interim protection because the Appellate Tribunal is not constituted.Extension of limitation due to non-constitution of the Appellate Tribunal - interim protection against giving effect to an order pending filing of appeal - Petitioner was granted time extension to file appeal in accordance with paragraph 4.2 of the Government circular dated 18 March 2020 and the impugned order was stayed from being given effect until two weeks after that extended period expires. - HELD THAT: - Relying on the Central Government's Circular dated 18 March 2020 and the approach adopted by another High Court, the Court held that a reasonable period should be allowed to the petitioner to prefer the statutory appeal after the Tribunal becomes functional. To protect the petitioner from immediate prejudice and to balance revenue interests, the Court extended the period for filing the appeal as per paragraph 4.2 of the Circular and directed that the impugned order shall not be given effect to until two weeks after the extended filing period prescribed in that paragraph has expired. The Court clarified that the petitioner remains free to urge all contentions before the Appellate Tribunal thereafter and that the protection is limited to the interregnum caused by non-constitution of the Tribunal. [Paras 11, 15, 16, 18, 19]Period for filing appeal extended as per paragraph 4.2 of the Circular dated 18 March 2020; operation of the impugned order stayed until two weeks after that extended period.Final Conclusion: Writ petition disposed of by extending the period for filing the statutory appeal in terms of paragraph 4.2 of the Government circular dated 18 March 2020 and by staying the operation of the impugned order until two weeks after the extended period expires, while leaving the petitioner free to press all contentions before the Appellate Tribunal once it is functional; no order as to costs. Issues:The challenge to the order passed in appeal under Section 107 of the West Bengal Goods and Services Tax Act, 2017 and the Central Goods and Services Tax Act, 2017 for the period 201-2019.Summary:The petitioner challenged the impugned order in a writ petition due to the non-constitution of the Appellate Tribunal, as the order is appealable. The petitioner sought protection based on a judgment of the Bombay High Court regarding the non-constitution of the Appellate Tribunal. The State argued that the petitioner must deposit the remaining tax amount in dispute to be favored with an interim order, citing Section 112(8) of the Central Goods and Services Act, 2017. The petitioner relied on a judgment of the Calcutta High Court regarding compliance with pre-deposit conditions. The Court considered the non-constitution of the Appellate Tribunal and a circular issued by the Government regarding the extension of the period of limitation for filing appeals. Following the Bombay High Court's approach to protect taxpayers, the Court granted protection to the petitioner until the Appellate Tribunal becomes functional. The petitioner was given liberty to approach the Appellate Tribunal within a reasonable time frame after its constitution, and the impugned order was stayed for two weeks after the prescribed appeal filing period. The Court emphasized that the petitioner can raise all contentions before the Appellate Tribunal and made no order as to costs.