The Allahabad High Court ordered to utilise the appeal provision of Section 107 of the GST Act for GST Demand orders issued under Section 73. The court directed the GST officers not to take any coercive action against the assessee until he filed the appeal before the appellate authority.
N.G.K Infra Ventures Pvt. Ltd, the assessee filed a writ petition before the Allahabad HC challenging the demand order issued under Section 73 of the U.P.GST/CGST/IGST Act by the Deputy Commissioner, State Tax of lucknow.
The S.73 GST Demand order imposed a GST liability of Rs. Rs.1,20,95,308.21, amount which includes the interest and penalty due upon the assessee-cum petitioner.
The assessee submitted that he has challenged the order on the ground that the same has been passed in violation of the statutory provision as well as no opportunity of hearing was given to the petitioner before passing the order.
The counsel for the respondent-GST department opposed the writ petition and submitted that notice was duly served upon the assessee who despite service of notice did not appear before the authority to defend the said notice and accordingly the impugned order has been passed assessing tax upon the assessee.
He further submitted that the petitioner, in any case, has equally efficacious remedy of an appeal as provided under Section 107 of the UPGST/CGST Act. The counsel mentioned judgement of the Supreme Court in the case of Commissioner of Income Tax & Others Vs. Chhabil Dass Agarwal reported in 2014 (1) SCC 603, it has been held that matters involving tax where provision of appeal is provided, the assessee should be relegated to the said remedy.
Thus, hearing the submissions, the bench of Justice Arun Kumar Singh Deshwal and Justice Alok Mathur held that all the grounds raised by the petitioner challenging the said assessment can be duly considered by the GST appellate authority in appeal.
Considering the submission of the assessee’s counsels, Manoj Kumar Mishra,Piyush Tripathi and Shrikant Chaudhary on the amount of tax and penalty assessed is on the higher side and accordingly submits that he should be protected till such time GST appeal is filed, the High Court directed not to take any coercive action against the assessee.
The High court viewed that all issues raised by the petitioner in the present writ petition can be adequately considered in appeal and accordingly the petitioner is relegated to his remedy of an appeal under Section 107 of the UPGST Act.
The court also clarified that the GST appeals shall be filed within 10 days next two weeks along with an application for interim relief. It was made clear that on passing of the orders by the appellate authority, the protection granted by this high court shall cease to have any effect.
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