2025 (12) TMI 84 - HC - GST

Writ allowed only when appellate forum non-functional; pre-deposit mandatory, petitioner directed to statutory appeal instead

HC held that a writ petition is maintainable despite availability of a statutory appeal only when the appellate forum is not constituted or functional, to ... Maintainability of writ petition - availability of alternative remedy of appeal to the Appellate Tribunal when such Tribunal is not constituted or functional - by-passing of requirement of pre-deposit - HELD THAT:- It is no longer res integra that the Writ Court can be approached assailing an order for which the forum of appeal is provided and the same is entertainable in the event the forum is not made functional or constituted as the person cannot be rendered remediless. Equally it is true that if conditions are attached to filing an appeal before such forum, the Writ Court shall ensure strict compliance thereof as a person cannot steal a march taking a shelter that there is no inhibition in the writ Court in entertaining the writ petition and passing an order taking departure from the said statutory provision. Since the forum has already been provided in the statute, which is now made functional and the period for filing the appeal has been extended in a fragmented manner, it would not be proper for the Writ Court to keep such writ petitions pending as the dispute raised by the petitioner in the instant writ petition can be adjudicated by the said forum and, therefore, the writ petition is disposed of in terms of conditions imposed. 1. ISSUES PRESENTED AND CONSIDERED 1.1 Whether a writ petition is maintainable against an order appealable to the Appellate Tribunal when such Tribunal is not constituted or functional. 1.2 Whether, after constitution and operationalisation of the Appellate Tribunal and issuance of timelines for filing appeals, the writ petition should continue or the petitioner should be relegated to the statutory appellate remedy. 1.3 Whether the statutory pre-deposit requirement under Section 112(8) of the GST Act can be bypassed when a party approaches the Writ Court due to non-constitution of the Appellate Tribunal. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Maintainability of writ petition in absence of functional Appellate Tribunal Interpretation and reasoning 2.1 The Court recorded that the Appellate Tribunal under Section 112 of the GST Act was not earlier constituted and functional, thereby rendering the statutory appellate remedy practically unavailable to an aggrieved person. 2.2 The Court held that it is settled law that where the forum of appeal is provided but is not made functional or constituted, the Writ Court can be approached to assail the order, since a person cannot be rendered remediless. Conclusions 2.3 The writ petition was entertainable at the stage when the Appellate Tribunal was not functional, as the petitioner otherwise had no effective appellate forum. Issue 2: Effect of subsequent constitution of Appellate Tribunal and notified timelines on continuation of writ proceedings Legal framework discussed 2.4 The Court referred to Section 112 of the GST Act providing for appeal to the Appellate Tribunal. 2.5 The Court noticed Notification S.O. No. 4220(E) dated 17 September 2025 issued under Section 112(1) of the GST Act, prescribing 30 June 2026 as the outer date up to which appeals may be filed before the Appellate Tribunal in respect of orders communicated before 1 April 2026, and further prescribing that appeals against orders communicated on or after 1 April 2026 shall be filed within three months from communication. 2.6 The Court further noticed the 'User Advisory for the GSTAT e-Filing Portal' prescribing a staggered period and detailed schedule for filing appeals before the Appellate Tribunal, including the possibility of filing at any subsequent date up to 30 June 2026 in case the particular initial window is missed. Interpretation and reasoning 2.7 The Court observed that the appellate forum under the statute has now been made functional and that the period for filing appeals has been extended and structured in a 'fragmented' (staggered) manner, providing sufficient time for filing appeals. 2.8 In view of the functional Appellate Tribunal and the clear timelines for filing appeals, the Court held that it would not be proper for the Writ Court to keep such writ petitions pending where the dispute can now be adjudicated by the statutory forum specifically created for that purpose. Conclusions 2.9 The writ petition was disposed of and the petitioner was relegated to the statutory remedy before the Appellate Tribunal, to be availed within the timelines prescribed in the Notification and the User Advisory for the GSTAT e-Filing Portal. 2.10 The Court directed the petitioner to file an appeal before the Appellate Tribunal as per the said timelines, and directed that if the appeal is filed in conformity with Section 112 and the relevant Rules, it shall be entertained by the Appellate Tribunal. Issue 3: Applicability and enforcement of pre-deposit requirement under Section 112(8) in the context of writ jurisdiction Legal framework discussed 2.11 The Court reproduced Section 112(8) of the GST Act, which stipulates that no appeal shall be filed unless the appellant has paid: (a) in full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him, and (b) a sum equal to ten per cent of the remaining amount of tax in dispute, in addition to the amount paid under Section 107(6), subject to a maximum of twenty crore rupees. Interpretation and reasoning 2.12 The Court held that although the Writ Court can entertain a petition when the appellate forum is not functional, such recourse does not absolve an aggrieved person from compliance with statutory conditions attached to filing an appeal, including the mandatory pre-deposit under Section 112(8). 2.13 The Court observed that the Writ Court must ensure strict compliance with such statutory pre-conditions and a litigant cannot 'steal a march' by invoking writ jurisdiction to circumvent the restrictions and obligations that the legislature has attached to the appellate remedy. Conclusions 2.14 The Court directed the petitioner to deposit, if not already deposited, the amount required under Section 112(8) of the GST Act before the Appellate Tribunal as a condition for filing the appeal. 2.15 The Court clarified that the appeal, once filed with the requisite pre-deposit and in conformity with Section 112 and the relevant Rules, shall be entertained by the Appellate Tribunal, and that the Court has not expressed any opinion on the merits of the first appellate order.