The Orissa High Court stayed the demand for Goods and Service Tax (GST), due to the non-constitution of the second appellate authority.
The petitioner, Trilochan Biswal has challenged the 1st appellate order passed by the Joint Commissioner, State Tax (Appeal), Territorial Range, Koraput 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 Goods and Service Tax (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. R.C. Jena, 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, the 2nd appellate tribunal has not yet been constituted.
It was further 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.
Mr. Sunil Mishra, Standing Counsel for Revenue vehemently contended that since there is a 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 comprising Dr Justice B R Sarangi and Justice Murahari Sri Raman held 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 the entire tax demand within a period of four weeks from today, the rest of the demand shall remain stayed during the pendency of the writ petition.”
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