Case Law Details
Krushna Mohan Dutta Vs Commissioner of CT & GST (Orissa High Court)
Introduction: The Orissa High Court recently adjudicated a crucial case involving the non-constitution of the Second Appellate Tribunal (GSTAT) and GST tax demands. The case, Krushna Mohan Dutta v. Commissioner of CT & GST, Odisha & Others [W.P (C) No. 25096 of 2023 dated August 09, 2023], is of significance for its implications on GST tax appeals. Hon’ble Orrisa High Court held that, the assessee is required to deposit entire disputed demand within 15 days if the assessee intends to seek remedy through writ court in case on non-constitution of GSTAT.
Facts:
Krushna Mohan Dutta (“the Petitioner”) preferred and appeal before the Joint Commissioner of State Tax, CT & GST (“the first Appellate Authority”) who vide Order dated June 02, 2023 (“the Impugned Order”) has not admitted the appeal preferred by the Petitioner, as the same is in contravention to 107(1) & (4) of the Central Goods and Services Tax Act, 2017 (“the CGST Act”). Due to non-constitution of the Appellate Tribunal the Petitioner filed the present writ before the Hon’ble Orissa High Court.
Issue:
Whether the Petitioner is liable to deposit the tax demand if the tax was entirely paid and the Appellate Tribunal is not yet constituted?
Held:
The Hon’ble Orrisa High Court in W.P (C) No. 25096 of 2023 held as under:
- Observed that, the Petitioner wanted to avail the remedy under the provisions of law by approaching the Appellate Tribunal which is not yet constituted.
- Directed, the Petitioner to deposit the entire tax demand within the period of fifteen days.
- Opined that, subject to the Petitioner depositing entire tax demand, the rest of the demand shall remain stayed.
- Listed the matter along with W.P.(C) No.6684 of 2023 for the next date.
Conclusion: The Orissa High Court’s judgment sheds light on the complexities businesses face due to the non-constitution of the Second Appellate Tribunal. By setting the interim measures and demanding a complete tax deposit, the court attempts to strike a balance between legal compliance and a taxpayer’s rights. As the landscape of GST and its appeals continues to evolve, this case serves as a precedent for many others to come.
FULL TEXT OF THE JUDGMENT/ORDER OF ORISSA HIGH COURT
1. 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 02.06.2023 passed by the Joint Commissioner of State Tax, CT & GST, (Appeal) Territorial Range, Balasore 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. Mr. A.K. Biswal, 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 the Opposite parties, let required number of copies of the writ petition be served on him 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.
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Author Bio
we should pay the entire dispute tax before filing the appellant tribunal?