Alis Super Market Vs Joint Commissioner of State Tax (Appeals) (Kerala High Court)
Summary: The Kerala High Court allowed the writ petition filed by Alis Super Market against the appellate authority’s order dismissing its GST appeal as time-barred. The petitioner had challenged the order passed under section 107 of the CGST/SGST Acts and contended that it was entitled to the benefit of Notification No. 53/2023-Central Tax dated 02.11.2023, which permitted specified delayed appeals subject to prescribed conditions, including payment of an additional 2.5% of the disputed tax over and above the mandatory 10% pre-deposit. Although the petitioner had initially filed the appeal without remitting the additional 2.5%, it subsequently paid the amount. The High Court noted that the appellate authority had not considered whether the petitioner was entitled to the benefit of the notification and held that an opportunity should have been given to the petitioner to avail the benefit.
The Court also noted that, in an earlier judgment, it had found failure to pay the additional 2.5% to be a curable defect. Accordingly, the High Court quashed the impugned appellate order and restored the appeal to the files of the appellate authority. The appellate authority was directed to pass fresh orders after ascertaining whether the petitioner could be extended the benefit of Notification No. 53/2023-Central Tax and after taking note of the observations contained in the present judgment. The judgment therefore does not finally decide the petitioner’s entitlement to the notification; instead, it requires the appellate authority to reconsider that entitlement after providing the appropriate opportunity.
Cases Discussed
- WP(C) No. 40639 of 2025, judgment dated 28.11.2025 — cited by the Kerala High Court for the proposition that failure to pay the additional 2.5% of disputed tax is a curable defect.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
This writ petition has been filed by the petitioner, challenging Ext.P6 order of the appellate authority filed under Sec.107 of the CGST/SGST Acts on the ground that the appeal was filed beyond time. It is submitted by the learned counsel appearing for the petitioner that, the petitioner was entitled to the benefit of Notification No.53/2023 of Central Tax dated 02.11.2023, which provided that, in respect of orders passed by the assessing authority on or before 31.01.2023, an appeal could be filed beyond the time specified by Sec.107 of the CGST/SGST Acts, provided, an additional 2.5% of the disputed tax was paid over and above the 10% of mandatory pre-deposit of the disputed tax and if such appeal so filed before 31.01.2024. It is submitted that, though the petitioner did not remit the additional 2.5% of the disputed tax at the time of the filing the appeal, the petitioner has, by now remitted the said amount also, as can be seen from Ext.P7. It is submitted that, had an opportunity being granted to the petitioner, he would have remitted the additional 2.5% to claim the benefit of Ext.P2 notification.
2. The learned Government pleader seeks time to get instructions.
3. However, in the facts and circumstances of this case, I do not deem it necessary to adjourn this writ petition to enable the learned Government Pleader to obtain instructions, as it appears from reading of Ext.P6 that the appellate authority has not considered whether the petitioner was entitled to the benefits of Ext.P2 notification. In my view, the appellate authority should have given, an opportunity to the petitioner to avail the benefits of Ext.P2 notification and if he had found the petitioner had not paid the additional 2.5% of the disputed tax which was required to be paid to claim the benefit of Ext.P2 notification, such opportunity should have been granted. This Court in Ext.P8 judgment has found that the failure to pay the additional 2.5% is a curable defect.
Accordingly, this writ petition is allowed. Ext.P6 is quashed.
The appeal which lead to Ext.P6 order will stand restored to the files of appellate authority, who shall pass fresh orders in the matter, after ascertaining as to whether the petitioner can be extended the benefits of Ext.P2 notification, and taking note of the observation in this judgment.
