Case Law Details
Biswal Sales Vs Commissioner of CT & GST (Orissa High Court)
Introduction: The Orissa High Court dealt with a writ petition challenging the 1st appellate order passed by the Joint Commissioner of State Tax (Appeal), Jajpur Range, Odisha. The petitioner, Biswal Sales, sought to appeal the order, but the 2nd appellate tribunal (GST Appellate Tribunal or GSTAT) had not been constituted yet. The issue revolved around the petitioner’s liability to pay tax and penalty and the absence of a functioning 2nd appellate forum.
Analysis: The petitioner’s counsel argued that the petitioner was not liable to pay the tax and penalty and, as there was no 2nd appellate tribunal established, the High Court should entertain the writ petition. The petitioner had already deposited 10% of the demanded tax amount before the 1st appellate authority.
On the other hand, the Standing Counsel for the Department contended that there was a delay in preferring the appeal, and the High Court might not condone the delay beyond four months. The petitioner was liable to pay the tax if it wanted to appeal before the 2nd appellate tribunal. However, since there was no 2nd appellate tribunal constituted, the petitioner needed to pay 20% of the balance disputed tax to have its appeal considered by the 2nd appellate tribunal.
Conclusion: The High Court issued notice to the opposite parties and accepted the Standing Counsel’s undertaking to represent them. As an interim measure, the Court ordered that the petitioner could avail the remedy by approaching the 2nd appellate tribunal, subject to depositing the entire tax demand within fifteen days. During the pendency of the writ petition, the rest of the demand would remain stayed. The Court disposed of the matter and listed it along with another related case for the next hearing.
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