A two-judge bench of the Allahabad High Court comprising Justices Surya Prakash Kesarwani and Jayant Banerji, while considering a Public Interest Litigation (PIL) has referred the matter to a larger bench headed by the Chief Justice.
The petitioner, Apex Leather filed a refund application under Section 54 of the Central Goods and Service Tax Act, 2017/ U.P. Goods and Service Tax Act, 2017 in form GST-RFD-01 on 31.03.2020 for which an acknowledged receipt in RFD02 was issued by the respondents on 09.04.2020. The refund application of the petitioner was rejected by the proper officer by order dated 29.04.2020 in form GST-RFD-06. On appeal, the plea of the petitioner was partly allowed by order dated 29.06.2021. Against the order of the First Appellate Authority, the petitioner has a right of appeal under Section 112 of the Act, 2017 but since GST Tribunal has not been constituted so far in the State of Uttar Pradesh, therefore, the petitioner has approached the High Court praying to quash the impugned order dated 29.06.2021 passed by the respondent No.2 in so far as it rejects the application for refund of the petitioner for the months prior to March, 2018 to the extent of Rs.7,92,739/-.
The bench observed that as per the scheme of the Act, the GST Tribunal would be the last fact-finding authority.
“Non-constitution of Tribunal has left remediless lacs and lacs dealers under the Act, 2017 in the State of Uttar Pradesh since the year 2017, particularly small and medium-class dealers who are not able to afford to file writ petitions against orders of the First Appellate Authority for variety of reasons including the high cost of litigation in High Court,” the Court opined.
While referring the matter to a larger bench headed by Chief Justice, The High Court expressed that “In view of alarming situation created due to non-establishing of State Bench and Area Benches of GST Tribunal in the State of Uttar Pradesh, rendering the entire class of dealers remediless under the Act, 2017 from availing statutory remedy of appeal under Section 112 of the Act, 2017, we are of the view that under the facts and circumstances and prevailing situation, the matter is referred to Larger Bench.”
“Let this order along with the records of the writ petition be placed before Hon’ble the Chief Justice for constitution of a Larger Bench so that people in the State of Uttar Pradesh having right to avail remedy of appeal under Section 112 of the CGST/ U.P. GST Act, 2017 may avail the statutory remedy and may not remain remediless,” the Court concluded.
M/S Apex Leather vs State Of U.P. And 2 Others
CITATION: 2022 TAXSCAN (HC) 182
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