Sri Sai Auto Tech Bodhan vs. Assistant Commissioner Of Central GST

Original PDF →
WP/2417/2024HC TelanganaGSTCNR HBHC01004757202403 April 2024Bench: SUJOY PAUL,N.TUKARAMJI5 pages
For Petitioner: SRI M. NAGA DEEPAKFor Respondent: Mr. DOMINIC FERNANDES', SENIOR STANDING COUNSEL FOR CBIC
AI SummaryPartly Allowed

Facts

The petitioner, Sri Sai Auto Tech Bodhan, challenged a recovery letter dated December 4, 2023, issued by the Assistant Commissioner of Central GST to Axis Bank branches. The petitioner argued that while they have a remedy of appeal, the GST Appellate Tribunal has not yet been constituted. They sought interim protection from recovery until the appellate authority is formed, and contended that under Section 112(8)(b) of the CGST Act, 2017, only a certain percentage of the disputed tax, not the penalty, needs to be deposited. The respondents, represented by the Senior Standing Counsel for CBIC, had no objection to this prayer.

Held

The Court disposed of the writ petition by reserving liberty to the petitioner to file an appeal before the GST Appellate Tribunal as and when it is constituted. Crucially, the Court directed that until the appellate authority is formed, no coercive action would be taken against the petitioner pursuant to the recovery letter dated 04.12.2023. The Court explicitly stated that it had not expressed any opinion on the merits of the case. The reasoning was based on the petitioner's submission that they have an appellate remedy but cannot avail it due to the non-constitution of the tribunal, and the revenue's lack of objection to the interim relief sought. The ratio decidendi is that in the absence of a functional appellate mechanism, and with no objection from the revenue, interim protection against recovery should be granted to preserve the petitioner's right to appeal.

Key Issues

1. Whether the recovery letter dated 04.12.2023 issued by the Assistant Commissioner of Central GST is void, illegal, arbitrary, and violative of constitutional principles and natural justice, particularly in the absence of a constituted GST Appellate Tribunal? 2. Whether the petitioner is entitled to interim protection from coercive recovery actions until the GST Appellate Tribunal is constituted and they can avail their appellate remedy? 3. Whether the petitioner is only required to deposit a certain percentage of the disputed tax, as per Section 112(8)(b) of the CGST Act, 2017, and not the penalty amount, while pursuing their appeal? Petitioner's Arguments: The petitioner argued that the recovery letter was illegal and arbitrary. They highlighted the lack of a constituted GST Appellate Tribunal, preventing them from filing an appeal. They relied on Section 112(8)(b) of the CGST Act, 2017, to argue for a reduced deposit requirement for appeal. They sought interim relief to prevent recovery until the tribunal is functional. Revenue's Arguments: The revenue, represented by the Senior Standing Counsel, stated they had no objection to the petitioner's prayer.

Sections Cited

Section 112

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
[ 3403 ] HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRD DAY OF APRIL TWO THOUSAND AND TWENTY FOUR PRESENT . THE HONOURABLE SRI JUSTICE SUJOY PAUL AND THE HONOURABLE SRI JUSTICE N.TUKARAMJI WRIT PETITION No. 2417 0F 2024 Between: Sri Sai Auto Tech Bodhan, 1-.4-.3p9, Bodhan, Nizamabad, Telangana, 5031g5 Represented .by its .p-roprietor Shri lr/dhendii A'rruo, Slo. e 'v,d[ Xg;j' ,;;i:; Years, Ryo. 11-1-1943, Gangasthan, phase 1, Armooi Road. Nizambad" ...PETITIONER AND Assistant commissioner of centrar GST, Nizamabad GST Division, Medchar Commissionerate KNAR estate, 3rd f noi, ru,zimaOiO --503 003. Axis Bank, Kanteshwar Branch, D No. 11t1115gt1, Vidyuth Nagar, Nizmabad District. Represented by its Manager. Axis Bank, Sri Sai Tractors, Near Ivlahalaxmi Temple. tr,4ahalaxmi Nagar, Main Road, Armoor, Nizamabad District RepresenfeO Oy iis M"nrger. Commissioner of Central Tax, I\4edchal Commissionerate, l\/edchal GST Bhavan, 11-4-64918, Lakdikapul, Hyderabad - 500 004 Union of lndia. Ministrv of Finance, Represented by its Secretary, North Block, New Delhi-1 10001 ...RESPONDENTS Petition under Articre 226 of rhe constiturion of rndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a writ, order or direction, more particurarry in the nature of a writ of mandamus declaring the recovery letter dated O4l1Zl2O23 issued by the Respondent No. 1to Respondent No.2 and 3 as being void, illegal arbrtrary, violative of Articles 14, 19, 21 of the constitution of rndia, viorative of principres of 2 3 4 1 I natural justice and without any authority of law and consequently set aside the same lA NO: 1 OF 2024 petition under Section 151 CPC praying'that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to direct the Respondent No. 1 not to recover any amounts from the Petitioner until the expiry of the time limit to file an appeal before GST Tribunal. lA NO: 2 OF 2024 Petition under section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the recovery letter dated O411212023 issued to Respondent No. 2' Counsel for the Petitioner: SRI M. NAGA DEEPAK Counsel for the Respondent Nos. 1 & 4: Mr. DOMINIC FERNANDES' SENIOR STANDING COUNSEL FOR CBIC Counsel for the Respondent No.5: SRI GADI PRAVEEN KUMAR, DEPUW SOLICITOR GENERAL OF INDIA Counsel for the Resporrdent Nos. 2 & 3: - The Court made the following: ORDER ,l THE HONOURABLE SRI JUSTICE SUJOY PAUL AND THE HONOURABLE SRI JUSTICE N. TUI{ARAMJI SIRIT PETITION No.24l7 of 2o24

ORDER (per Hon'ble SP,J) Mr.M.Nagar Deepak, learned counsel appeared on behalf of the petitioner and Mr.Dominic Fernandes, learned Standing Counsel appeared on behalf of respondent Nos.1 and 4. 2. With the consent frnally heard.

3.

Learned counsel for the petitioner submits that the petitioner has assailed tJre recovery letter dated 04.12.2023 issued to respondent No.

2.

It is submitted that the petitioner has a remedy of appeal but the appellate authority has not been constituted till date. By reserving liberty to avail the said remedy rvhenever appellate authority is constituted, this petition may be disposed of and in the meantime, the respondents may be directed not to recover the amount pursuant to letter dated 04.12.2023. It is further submitted that in vierv of Clause (b) of Sub-Section (8) of Section 112 of CGST Act, 2017, the petitioner is only required to deposit certain percentage of tax in dispute and not the amount of penalty. In this view of the matter, the aforesaid interim protection may be granted without compelling

2 To, the petitioner to deposit any amount till availing the remedy of appeal.

4.

Mr.Dominic Fernandes, learned Standing Counsel for respondent Nos.l and 4 has no objection to this innocuous prayer.

5.

The writ petition is disposed of by reserving liberty to the petitioner to file appeal as prayed for. Till formation of appellate authority, no coercive action be taken against the petitioner pursuant to recovery letter dated 04.12.2023. It is made clear that this Court has not expressed any opinion on the merits of the case. No costs. Interlocutory applications, if any pending, shall also stand closed. . A. PRATHIMA ASSISTANT RE9lsrRAR //rRUE coPY/, l: ) SECTIoN OFFICER

1.

The Assrstant Commissioner of Central GST' Nizamabad GST Division' lr/ledchal commissioneraiJ'ritrn"d "ii'i"lgr.o rtobr' Nizamabad - 503 003'

2.

The t\/anaqer, Axis Bank, Kanteshwar Branch' D'No'11/1/159/1 ' Vidyuth Naqar. Nrzmabad Districl

3.

The t\,4anacler' Axis Bank' Sri Sai Tractors' Near Mahalaxmi Temple' " rri"nri"i.iilrrgar' trrtain Roua, Attoot' Nizamabad District' 4 The Conrnrissioner ol Ccntral Tax lvledchal C-ommissionerate Medchal GST - Bhr#"; i;c+gle rok;iiiipul Hvderabad - 500 004'

5.

The Secretary, Unton of lndia' tVlinistry of Finance' North Block' New Delhi- 1 1 0001

6.

One CC to SRI IvI NAGA DEEPAK' Advocate [OPUC]

7.

One CC to SRI DOIMINIC FERNANDES' Senior Standing Counsel for CBIC loPUCl 8-oneCCtoSRIGAD|PRAVEENKUMAR,DeputySolicitorGeneraloflndia loPUCl 9 Two CD CoPies k t\4P

HIGH COURT DATED:0310412024 28, ORDER WP.No.2417 of 2024 DISPOSING OF THE WRIT PETITION WITHOUT COSTS rl t*,.. '\oq 1P'

Reproduced from the public record of the Telangana High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.