Orissa HC Directs Payment of 20% of Disputed Tax in Absence of GSTAT

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.

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