The Orissa High Court stayed the tax demand till the pendency of the writ subject to the deposit of tax amount in absence of the GST tribunal.
M/s. Tushar Kanta Nayak, the petitioner challenged the 1st appellate order dated 31.01.2023 passed by the Joint Commissioner of State Tax (Appeal), CT & GST Territorial Range, Bhubaneswar, 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 .
It was 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. Further stated 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 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 appellate authority has not been vested with discretion to condone the delay beyond one month after the lapse of three months from the date of communication of order impugned therewith.
It further submitted that if the petitioner wants to avail the remedy by preferring appeal before the 2nd appellate tribunal then the petitioner is liable to pay 20% of the balance disputed tax for consideration of its appeal by the 2nd appellate tribunal.
A Coram Comprising Dr Justice BR Sarangi and Justice MS 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 four weeks, the rest of the demand shall remain stayed during the pendency of the writ petition.”
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