Section 128A of CGST Act

[NILESH PITALE]

Dear Expert

My One of the Client has withdraw the Appeal for availement of Scheme Benefit but he could not pay the Requisit Tax Amount Before 31.3.2025.

Our Question -- Can Original Appeal Be restore or We need to file Fresh Appeal U/s 107 against The Order U/73

Please Guide

Thanks

[Sadanand Bulbule]

In this case appeal petition cannot be restored under Section 107. Since your client has failed to remit the disputed tax amount on or before 31/03/2025, he got himself disqualified for amnesty scheme under Section 128A of the CGST Act. This scheme is by clear choice and not by chance.

[Sadanand Bulbule]

Also refer the CBIC Circular No.248/05/2025-GST dated 27/03/2025.

[YAGAY andSUN]

Professional Note on Withdrawal of Appeal for Scheme Benefit and Non-Payment of Tax under Section 128A, CGST Act

Background:

Your client had earlier filed an appeal under Section 107 of the CGST Act, 2017 against an order passed under Section 73. Subsequently, the appeal was withdrawn to avail the benefit of the special amnesty scheme notified under Section 128A, introduced via the Finance Act, 2024. However, due to non-payment of the requisite tax amount before the prescribed due date of 31.03.2025, the client has not qualified for the benefit of the said scheme.

Key Legal Considerations:

1. Nature of Amnesty Scheme under Section 128A:

• The amnesty scheme notified under Section 128A is voluntary in nature, requiring:
  • Withdrawal of pending appeal, and
  • Payment of the requisite tax amount within the stipulated timeline.
• Failure to comply with either condition results in automatic disqualification from the scheme.
• Refer: CBIC Circular No. 248/05/2025-GST dated 27.03.2025, which clarifies that:

"Failure to make the payment within the prescribed time will render the declaration under the scheme void ab initio, and no benefit shall accrue to the taxpayer."

2. Whether Appeal Can Be Restored:

• Once an appeal under Section 107 is withdrawn voluntarily (even to opt into a statutory scheme), the same cannot be restored unless there is a statutory provision or court direction permitting such restoration.
• The CGST Act does not contain any enabling provision for restoration of a voluntarily withdrawn appeal.
• Hence, restoration of the original appeal is not permissible under current provisions.

3. Remedy Available – Filing of Fresh Appeal:

• In the absence of the benefit under Section 128A and since the client is now left without a pending appeal, the only remedy is to file a fresh appeal under Section 107, subject to:
  • Limitation period: The new appeal should be within the original or extended limitation period from the date of the order under Section 73.
  • If the limitation has expired, an application for condonation of delay may be filed along with the appeal, subject to the outer time limit of 4 months (3 months + 1 month for condonation) from the date of the order.

Conclusion:

• The original appeal withdrawn to avail the scheme cannot be restored under Section 107.
• Since your client failed to pay the requisite tax amount on or before 31.03.2025, they are disqualified from the scheme under Section 128A.
• A fresh appeal under Section 107 against the original order under Section 73 is the only viable course, subject to limitation.

Please ensure the date of the original adjudication order under Section 73 is verified, and immediate steps are taken to file a fresh appeal if the limitation period has not yet lapsed or is condonable.

[Sadanand Bulbule]

Dear Yagay Sir

I wish to underline here that, there is no provision under Section 107 to file FRESH appeal against the same orders. Once the appeal petition is withdrawn on his own, it is absolutely withdrawn and not provisionally withdrawn. Nor the Appellate Authority can re-admit it. 

[KASTURI SETHI]

Sh.Sadanand Bulbule Ji,

Sir, Your view is correct. There is no provision under Section 107 of CGST Act to file fresh appeal against the same adjudication order.

In this scenario, the benefit of Section 14 of Limitation Act, 1963 is possible only under Article 226 of the Constitution of India by High Court and Supreme Court

[YAGAY andSUN]

It is why I had mentioned the phrase " Subject to Limitation" in my above view.

[Sadanand Bulbule]

Dear Ygay Sir

I am curious to know under what situation, appeal petition can be restored under Section 107? Because I have also similar cases. Kindly enlighten.

[KASTURI SETHI]

Sh.Sadanand Bulbule Ji,

Sir, Here is a case law which may be useful for you.

MURLI PACKERS Versus STATE OF U.P. - 2024 (2) TMI 63 - ALLAHABAD HIGH COURT

 

[YAGAY andSUN]

Following two judgments may be useful in connection with the aforesaid matter.

1. Arvind Gupta v. Assistant Commissioner of Revenue State Taxes

• Court: Calcutta High Court
• Citation:2024 (1) TMI 1096
• Case Details: The court emphasized that the appellate authority has the discretion to condone delays in filing appeals under Section 107(4) of the CGST Act, provided sufficient cause is shown, and directed the appellate authority to reconsider the appeal on merits.

2. Gaddipati Venkateswara Rao v. Additional Commissioner (ST) (Appeals)

• Court: Andhra Pradesh High Court
• Citation:2024 (2) TMI 1205
• Case Details: The court condoned a 56-day delay in filing a GST appeal due to the petitioner's ill health, despite the delay exceeding the condonable period, and directed the appellate authority to hear the appeal on merits.

[Sadanand Bulbule]

Thank you very much.

AI Summary

Legal Challenge: Taxpayer Loses Appeal Rights After Missing Amnesty Scheme Deadline Under Section 128A of CGST Act A taxpayer withdrew an appeal to avail a special amnesty scheme under Section 128A of the CGST Act but failed to pay the requisite tax amount by 31.03.2025. Legal experts unanimously concluded that the original appeal cannot be restored, and no fresh appeal can be filed under Section 107. The only potential recourse might involve constitutional remedies through high courts, subject to strict limitation periods and specific legal grounds for appeal restoration.