Non constitution of GSTAT: Orissa HC stays GST demand [Read Order]

The Orissa High Court stayed the GST demand on the petitioner on the ground of non constitution of the Goods and Service Tax Appellate Tribunal (GSTAT).

The petitioner, Tapas Kumar Mohanty, has filed the present writ petition challenging the 1st appellate order dated 08.09.2023 passed by the Addl. Commissioner of State Tax (Appeal), South Zone, Berhampur 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.

The 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 was 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, the Court should entertain this writ petition.

Diganta Dash, Additional Standing Counsel 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.

A Division Bench of Acting Chief Justice Dr BR Sarangi and Justice MS Raman observed 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.”

To Read the full text of the Order CLICK HERE

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