2024 (4) TMI 151 - HC - GST

High Court Allows Tax Appeal Pathway Despite Tribunal Vacancy, Mandates 20% Deposit for Statutory Challenge to Tax Order

M/s. Anil Kumar Mandoi Versus Joint Commissioner of State Tax (Appeal) and Another

HC recognized that the order was appealable under CGST/OGST Act Section 112, but the non-constitution of the Appellate Tribunal prevented the statutory ... Maintainability of petition - availability of statutory remedy of Appeal - absence of constitution of Appellate Tribunal - HELD THAT:- The petitioner is desirous of availing the statutory remedy of Appeal under the said provisions. Apparently, acknowledging the absence of constitution of Appellate Tribunal, in exercise of the power conferred under section 172 of the CGST Act, 2017, the Government of India based on the recommendation made by the G.S.T. Council, has issued Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 on 03.12.2019 - In tune with the said Removal of Difficulties Order dated 03.12.2019, the Central Board of Indirect Taxes and Customs, GST Policy Wing vide Circular No. 132/2/2020-GST Dated 18th March, 2020 has come out with the clarification in respect of appeal having regard to non-constitution of the Appellate Tribunal. Taking into account the aforesaid Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 dated 03.12.2019 issued by the Government of India and subsequent clarification issued by the Central Board of Indirect Taxes and Customs (GST Policy Wing) vide Circular No. 132/2/2020 dated 18th March, 2020, it is deemed proper in the interest of justice to dispose of this writ petition subject to conditions imposed - petition disposed off. Issues involved: Appealability of the order under CGST/OGST Act due to non-constitution of the Appellate Tribunal.Summary:Issue 1: Appealability of the order under CGST/OGST ActThe High Court acknowledged that the order impugned in the writ petition is appealable under Section 112 of the CGST/OGST Act, 2017. However, due to the non-constitution of the Appellate Tribunal as required under section 109 of the Acts, the petitioner was deprived of the statutory remedy of Appeal and the corresponding benefits under sub-sections 8 & 9 of section 112.The Government of India, based on the recommendation of the GST Council, issued the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019, which clarified the timeframes for filing appeals in cases where the Appellate Tribunal had not been constituted. Subsequently, the Central Board of Indirect Taxes and Customs issued a circular providing further clarification on the appeal process in such situations.In light of the Removal of Difficulties Order and the circular, the High Court disposed of the writ petition by granting the petitioner the statutory benefit of stay on depositing a sum equal to 20 percent of the remaining tax amount in dispute. The Court also required the petitioner to file an appeal under Section 112 of the Acts once the Tribunal is constituted and functional, failing which the authorities could proceed further in the matter.With the above directions and observations, the High Court concluded the matter and ordered the issuance of an urgent certified copy of the order.