In a recent case, the Orissa High Court stayed the tax demand till the pendency of the writ subject to the deposit of tax amount due to non-constitution of the GST Appellate Tribunal.
M/s. Arati Construction, the petitioner has filed a writ petition challenging the 1st appellate order dated 20.03.2023 passed by the Joint Commissioner of State Tax (Appeal), by which said the 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.
It was contended that the petitioner is not liable to pay the tax and penalty against the order passed by the 1st appellate authority though the second appeal lies, the 2nd appellate tribunal has not yet beenconstituted. It was contended that the petitioner has already deposited 10% of the demanded tax amount before the first appellate authority and there is no second appellate forum.
The respondent department argued that since there is a delay in preferring the appeal, the Court may not be able to condone the delay beyond four months, particularly when the appellateauthorityhas not been vested with discretion to condone the delay beyond one month after the lapse of three months from the date ofcommunication of order impugned therewith.
A Coram Comprising of Justice B R Sarangi and Mr Justice M S Raman observed that “since the petitioner wants to avail the remedy under the provisions of law by approaching the 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 and the rest of the demand shall remain stayed during the pendency of the writ petition.”
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