Mandavalli Venkateswara Rao vs. The Union Of INDIA

Held

The Court allowed the writ petition. It held that the non-constitution of the GST Tribunal under Section 112 of the CGST Act leaves the petitioner without a remedy, and in the interest of justice, it is appropriate to condone the delay in filing the appeal. The Court relied on a similar decision by a Division Bench of the High Court for the State of Telangana in W.P.No.27071 of 2022, where the matter was remitted back to the primary authority for reconsideration due to the absence of the Tribunal. The Court reasoned that the petitioner should not be left without recourse. Consequently, the matter was remitted back to the 2nd respondent to consider the appeal on its merits after hearing both parties. This relief was granted on the condition that the petitioner deposits 10% of the disputed tax, in addition to any amount already deposited, within three weeks of receiving the order.

Facts

The petitioner filed a writ petition seeking a mandamus to declare two orders, dated 22.05.2023 by the 2nd respondent and 20.10.2022 by the 3rd respondent, as illegal and arbitrary. The petitioner was assessed to tax and penalty under Section 74(1) of the APGST/CGST Act for ₹41,76,972/-. The petitioner's appeal against this assessment was rejected by the 2nd respondent on the technical ground that it was filed beyond the condonable period, specifically with a delay of 69 days. The petitioner argued that since the GST Appellate Tribunal has not been constituted under Section 112 of the APGST Act, 2017, they are left without a remedy and will suffer hardship if the delay is not condoned.

Key Issues

1. Whether the delay in filing the appeal by the petitioner should be condoned given the non-constitution of the GST Appellate Tribunal under Section 112 of the APGST Act, 2017, thereby preventing the petitioner from pursuing further legal remedies? Petitioner's Arguments: - The petitioner contended that the non-constitution of the GST Appellate Tribunal under Section 112 of the APGST Act, 2017, has deprived them of their statutory right to appeal. - They argued that in similar circumstances, the High Court for the State of Telangana had allowed a writ petition and remitted the matter to the primary authority for reconsideration, citing the Division Bench order in W.P.No.27071 of 2022. - The petitioner emphasized that unless the delay is condoned and they are given an opportunity to pursue their appeal, they will face significant hardship. Revenue/State's Arguments: - The learned Government Pleader for Commercial Tax-II opposed the writ petition but submitted that if the Court was inclined to allow it, suitable terms could be imposed.