Case Law Details
Laxman Barik Vs Joint Commissioner of State Tax (Orissa High Court)
Introduction: In a noteworthy legal proceeding, the Orissa High Court presided over the case of Laxman Barik Vs Joint Commissioner of State Tax. The litigation centred on GST demands and associated penalties where the court ordered a stay on the GST demand while also condoning the delay in the appeal. The court ruled in this manner primarily because the Second Appellate Tribunal has not yet been constituted.
Analysis: The core dispute in the case was related to the petitioner’s contention that he was not liable to pay the tax and penalty as prescribed by the 1st appellate order. However, a further appeal couldn’t be made due to the non-constitution of the 2nd appellate tribunal. The court, recognizing the void, entertained the writ petition despite arguments from the counsel for the revenue department against condoning the delay in appeal.
The petitioner, having already deposited 10% of the tax amount demanded, appealed to the court for consideration given the absence of a second appellate forum. The revenue department, on the other hand, insisted on the payment of an additional 20% of the disputed tax if the petitioner intended to proceed with an appeal before the yet-to-be-constituted 2nd appellate tribunal.
The court, despite these contentions, issued a notice to the opposite parties and stayed the remaining demand, subject to the full deposit of the tax demand by the petitioner.
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 31.01.2023 passed by the Joint Commissioner of State Tax, CT & GST Territorial Range, Angul, 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. Sunil Mishra, learned Standing Counsel for Revenue 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. Sunil Mishra, learned 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 four weeks from today, the rest of the demand shall remain stayed during the pendency of the writ petition.
9. A. stands disposed of.
10. List this matter along with W.P.(C) No. 6684 of 2023 on the date fixed therein.
