Assessee allowed to file appeal before GST Appellate Tribunal once constituted, as per Removal of Difficulties Order.

Case Name:

M/s. Salasar Techno Engineering Ltd. Vs. State Of U.P. (GST HC Case)

Key Takeaways:

- The court recognized the difficulty faced by assessees in filing appeals due to the non-constitution of the Appellate Tribunal.

- The Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 provides a solution by allowing assessees to file appeals within three months from the date the President or State President of the Appellate Tribunal enters office.

- The court directed the assessee to avail the remedy of filing an appeal before the Tribunal once it is constituted, as per the provisions of the Removal of Difficulties Order.

Issue:

Whether the assessee can bypass the remedy of appeal under Section 112 of the Central Goods and Services Tax Act, 2017, on the ground that the Appellate Tribunal has not been constituted.

Facts:

The assessee, M/S. Salasar Techno Engineering Ltd., filed a writ petition under Article 226 of the Constitution, challenging an order dated 21.10.2019 passed by the revenue authorities under Section 129(3) of the UP GST Act and Section 20 of the IGST Act, 2017. The assessee bypassed the remedy of appeal under Section 112 of the CGST Act, 2017, on the ground that the Appellate Tribunal had not been constituted.

Arguments:

The assessee argued that since the Appellate Tribunal had not been constituted, they could not avail the remedy of appeal under Section 112 of the CGST Act, 2017, and hence filed a writ petition.

The learned Standing Counsel for the State respondents pointed out that the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 provides a solution for such situations. The Order stipulates that the three months’ period for filing an appeal shall be considered from the date the President or State President of the Appellate Tribunal enters office after its constitution under Section 109.

Key Legal Precedents:

The case does not explicitly cite any legal precedents. However, it relies on the provisions of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019, issued by the Government to address the difficulty faced by assessees in filing appeals due to the non-constitution of the Appellate Tribunal.

Judgement:

The Allahabad High Court disposed of the writ petition by directing the assessee to invoke the remedy of filing an appeal before the Appellate Tribunal in terms of the provisions of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019. The court noted that since the seized goods had already been released, no prejudice would be caused to the assessee at the present moment.

FAQs:

Q1. What is the significance of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019?

A1. The Order provides a solution for assessees who were unable to file appeals due to the non-constitution of the Appellate Tribunal. It allows them to file appeals within three months from the date the President or State President of the Appellate Tribunal enters office after its constitution.

Q2. Can the assessee still file a writ petition if the Appellate Tribunal is not constituted?

A2. No, the court has directed the assessee to avail the remedy of filing an appeal before the Appellate Tribunal once it is constituted, as per the provisions of the Removal of Difficulties Order.

Q3. What happens if the seized goods have already been released?

A3. The court noted that since the seized goods had already been released, no prejudice would be caused to the assessee at the present moment. However, the assessee can still file an appeal before the Appellate Tribunal once it is constituted.

Q4. What is the legal reasoning behind the court’s decision?

A4. The court recognized the difficulty faced by assessees due to the non-constitution of the Appellate Tribunal and acknowledged the solution provided by the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019. The court directed the assessee to avail the remedy of filing an appeal before the Tribunal once it is constituted, as per the provisions of the Order.

Heard learned counsel for the petitioner and Sri B.K. Pandey, learned Standing Counsel for the State respondents.

The petitioner has preferred the instant petition under Article 226 of the

Constitution challenging the order dated 21.10.2019 passed in Appeal No.1130/2019 by respondent no.3 under Section 129 (3) of the U.P. G.S.T.

Act and C.G.S.T. Act, 2017/ Section 20 of the IGST Act, 2017.

It is not disputed that the impugned order is appealable under Section 112

of the C.G.S.T. Act, 2017. The appeal is to be filed within 90 days from the

date on which the order sought to be appealed is communicated to the

person preferring the appeal.

The instant petition has been filed bye-passing the remedy of appeal under

Section 112 of the Act on the ground that the appellate tribunal has not been constituted till date.

It has been pointed out by learned standing counsel that the Government, having regard to the difficulty faced by the assessees in filing appeal on

account of non-constitution of the Tribunal and its Benches in various

States and Union Territories, has issued Central Goods and Service Tax

(Ninth Removal of Difficulties) Order, 2019 notified in the Gazette of India

dated 3rd December, 2019 stipulating that in such a situation, the three

months' period shall be considered to be the date on which the President or

the State President, as the case may be, of the Appellate Tribunal after its

constitution under Section 109, enters office. It is urged that in such

circumstances, the petitioner can wait and avail the remedy of filing appeal

as and when the Tribunal is constituted. It is also pointed out that since the seized goods have already been released, therefore, no prejudice is going to be caused to the petitioner at the present moment.

Learned counsel for the petitioner very fairly admits the above legal

position and also the fact that the goods have already been released.

In view of the above, the instant petition is disposed of by providing that

the petitioner can invoke the remedy of filing appeal before the Tribunal in

terms of the provisions of the Central Goods and Services Tax (Ninth

Removal of Difficulties) Order, 2019.

(Manoj Kumar Gupta, J.)

Order Date :- 9.6.2020