The Orissa High Court stayed the impugned tax demand since the Goods and Service Tax Appellate Tribunal was not constituted for considering the appeal.
M/s. Sundar Pravat Das, the petitioner challenged the 1st appellate order passed by the Joint Commissioner of State Tax (Appeal)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.
Mr. S.K. Das, 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 the second appeal lies where the 2nd appellate tribunal has not yetbeen constituted.
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.
Mr. Sunil Mishra, Standing Counsel vehemently contended 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 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 was further contended that the petitioner is liable to pay the tax. In the event the petitioner wants to avail the remedy by preferring to 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.
A two-judge bench comprising Dr Justice B R Sarangi and Justice M S Raman held that “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 fifteen days from today, the rest of the demand shall remain stayed during the pendency of the writ petition.”
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