Smt. Sanghamitra Nanda Vs CBIC
Date: October 18, 2023
Subject Matter
GST demand stayed due to GSTAT absence on payment of entire tax demand within a period of fifteen days
Summary
The case involves a petition filed by Smt. Sanghamitra Nanda challenging the 1st appellate order rejecting her appeal under the GST Act. The absence of a functional Second Appellate Tribunal (GSTAT) prompted the Orissa High Court to stay the GST demand. The petitioner had already deposited 10% of the demanded tax amount and contested her liability to pay the tax and penalty. The Additional Standing Counsel for the Department raised concerns about the delay in filing the appeal and emphasized the requirement for the petitioner to pay a balance disputed tax amount for appeal consideration. The court granted an interim stay on the demand, subject to the petitioner depositing the entire tax demand within fifteen days.
FULL TEXT OF THE JUDGMENT/ORDER OF ORISSA HIGH COURT
This matter is taken up through hybrid mode.
2. The present writ petition is being entertained only because the Second Appellate Tribunal has not yet been constituted.
3. The petitioner has filed this writ petition challenging the 1st appellate order dated 15.09.2023 passed by the Joint Commissioner of State Tax (Appeal), Territorial Range, Ganjam, Berhampur by which said authority has not admitted the appeal preferred by the petitioner, as the same is in contravention to sub-sections (1) & (4) of Section 107 of the GST Act and has rejected the appeal filed under sub-Section (1) of Section 107 of the Odisha Goods and Services Tax Act, 2017.
4. Learned counsel for the petitioner contended that the petitioner is not liable to pay the tax and penalty and, as such, against the order passed by the 1st appellate authority though second appeal lies, the 2nd appellate tribunal has not yet been constituted. It is contended that the petitioner has already deposited 10% of the demanded tax amount before the first appellate authority and as there is no second appellate forum, this Court should entertain this writ petition.
5. Mr. Diganta Dash, learned Additional Standing Counsel vehemently contended that since there is delay in preferring the appeal, this Court may not be in a position to condone the delay beyond four months, particularly when 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. It is further contended that this case stands in different footing and, as such, the petitioner is liable to pay the tax. In the event the petitioner wants to avail the remedy by preferring appeal before the 2nd appellate tribunal then the petitioner is liable to pay 20% balance disputed tax for consideration of its appeal by the 2nd appellate tribunal.
6. Issue notice to the opposite parties.
7. Mr. Diganta Dash, learned Additional Standing Counsel for the Department accepts notice for Opposite party nos. 2 to 4 and Mr. Avinash Kedia, learned Junior Standing Counsel accepts notice on behalf of Opposite Party No.1, let required number of copies of the writ petition be served on them within three working days. Reply be filed within two weeks and rejoinder thereto, if any, be filed before the next date.
8. 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 the Petitioner depositing entire tax demand within a period of fifteen days from today, the rest of the demand shall remain stayed during the pendency of the writ petition.
9. I.A. stands disposed of.
10. List this matter along with W.P.(C) No.6684 of 2023 on the date fixed therein.