Case Law Details
Sekh Aminur Islam Vs Commissioner of CT & GST (Orissa High Court)
Introduction: The Orissa High Court recently delved into the complexities of the Goods and Services Tax (GST) through the case of Sekh Aminur Islam Vs Commissioner of CT & GST. The pivotal concern was the GST recovery in the absence of a Second Appellate Tribunal.
1. Background and Nature of the Writ Petition: The writ petition was initiated due to the non-existence of the Second Appellate Tribunal. Sekh Aminur Islam challenged the 1st appellate order dated 31.05.2023, wherein the Joint Commissioner of State Tax (Appeal) did not admit the petitioner’s appeal. This rejection was based on contraventions to subsections (1) & (4) of Section 107 of the GST Act and the appeal filed under sub-Section (1) of Section 107 of the Odisha Goods and Services Tax Act, 2017.
2. Contentions by the Petitioner: The counsel for Sekh Aminur Islam posited that the petitioner was not obligated to pay the disputed tax and penalty. Given that the 2nd appellate tribunal is yet to be formed and an appeal against the order from the 1st appellate authority is in line, the High Court should consider this writ petition. Emphasizing on the 10% tax amount already deposited by the petitioner, the counsel pushed for the Court’s intervention due to the absence of a second appellate forum.
3. Arguments from the Addl. Standing Counsel: Diganta Dash, representing the department, highlighted the delay in filing the appeal. He stressed that the court might not be in a position to pardon the delay beyond four months, especially when the appellate authority lacks discretion post a lapse of three months from the order’s communication date. Dash further argued that the case stands uniquely, holding the petitioner responsible for the tax payment. If the petitioner seeks remedy through a future 2nd appellate tribunal appeal, he would be obligated to pay an additional 20% of the disputed tax.
4. Immediate Proceedings and Further Directions: The court issued notices to the opposite parties, with Mr. Diganta Dash accepting it on their behalf. Following protocol, the High Court ordered that copies of the writ petition be served to Dash within three working days, expecting a reply in two weeks and subsequent rejoinders before the next scheduled date.
Conclusion: The case of Sekh Aminur Islam Vs Commissioner of CT & GST is emblematic of the challenges in India’s GST framework, especially in scenarios where institutional mechanisms like the 2nd appellate tribunal are absent. With significant tax implications at stake and time-sensitive elements in play, the Orissa High Court’s forthcoming decisions in this matter will be keenly observed by legal and financial stakeholders.
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 31.05.2023 passed by the Joint Commissioner of State Tax (Appeal), 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. Diganta Dash, learned Addl. 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. Since Mr. Diganta Dash, learned Addl. 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. List this matter with W.P.(C) No.6684 of 2023 on the date fixed therein.
