M/S. Olectra Greentech Limited vs. Deputy Commissioner (St) Stu-2
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M/s. Olectra Greentech Limited (the Petitioner) filed a Writ Petition before the High Court challenging an order of the Appellate Joint Commissioner of State Tax (2nd Respondent) dated 03/11/2023. This order confirmed the decision of the Deputy Commissioner (ST) (1st Respondent) dated 31/05/2022, which also included proceedings in DRC-07. The challenge pertains to the tax period April 2019 to June 2019, and the Petitioner seeks to set aside these orders as illegal, arbitrary, and without jurisdiction. The Petitioner also seeks to restore a previous order by the 1st Respondent dated 13/09/2019, which sanctioned a refund of Rs. 4,55,00,000/- for the same tax period. The primary ground for the writ petition is the non-constitution of the GST Appellate Tribunal as envisaged under Section 109 of the CGST Act, 2017.
Held
The Court held that in the absence of a functional GST Appellate Tribunal, it is compelled to entertain Writ Petitions challenging orders passed by GST Appellate Authorities. The Court noted that the GST Appellate Tribunal, as envisaged under Section 109 of the CGST Act, 2017, has not yet been constituted, even in 2024. Citing the precedent from the Bombay High Court and the undertaking given by the Chairman of the Central Board of Indirect Taxes and Customs, the Court stated that such writ petitions would be entertained and kept pending until the Tribunal is established or the writ petitions come up for hearing. As an interim measure, the Court directed the Petitioner to pay 20% of the tax liability as assessed by the Assessing Officer within four weeks. This payment is to be made after taking credit for the excess amount of 10% already deposited at the time of filing the first appeal, as per Section 112(7)(b) of the CGST Act. The authorities are restrained from taking coercive steps for the enforcement of the orders until the disposal of the appeal before the Tribunal. The Writ Petition was disposed of with these directions.
Key Issues
1. Whether the present Writ Petition is maintainable before the High Court in the absence of a functional GST Appellate Tribunal, as mandated by Section 109 of the Central Goods and Services Tax Act, 2017? The Petitioner argued that the non-constitution of the GST Appellate Tribunal renders the appellate orders passed by the authorities questionable and necessitates the High Court's intervention through a writ petition. The Petitioner contended that the High Court is compelled to entertain such petitions due to the absence of the statutory appellate forum. The Respondents, represented by the Special Government Pleader for Taxes, acknowledged the non-constitution of the Tribunal. They referred to an undertaking given by the Chairman of the Central Board of Indirect Taxes and Customs in a similar matter before the Bombay High Court, wherein no coercive steps would be taken against assessees pending the Tribunal's constitution. The Respondents accepted that this undertaking still holds good.
Sections Cited
Section 109, Section 112(7)(b)
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Cause title — parties, addresses and appearances
The Court made the following: ORDER
THE HONOURABLE SRI JUSTICE P.SAM KOSHY AND THE HONOURABLE SRI JUSTICE N.TUKARAMJI WRIT PETITION No.65O3 Ot 2024 ORDER:(per Ho n'ble Sri Justice P.SAM KOSI-{tt) Heard Sri Karthik Ramana Rrttamreddy, learned counsel for the petitioner and Sri Swaroop Oorilia, learned Special Government Pleader for the respondents.
The present Writ Petition has been filed seeking for the following relief: I. to set aside the order of 2"d respondent in Appeol No.B/44/2022, dated 03.11.2023 for the tax peiod April, 2O19 confinning the order of the 1s respondent dated 31.05.2O22 and proceeding in DRC-07 uide Ref.No.2D36O5220267689, dated 31.O5.2O22 as being illegal and arbitrary. il- to restore the order passed bg the 1,t respondent in RFD- 06, dated 13.09.2019 sanctioning the refund of Rs.4,55,OO,O00/ - for the tax peiod April, 20 19 to june, 2O 19 as ualid and sustainable and pass such other order.
The instant Writ Petition has been filed challenging the impugned order primarily on the ground that the G.S.T. Appellate Tribunal (for short "Tribunal"), as has been envisaged under Section 109 of the Central Goods and Services Act, 2017, (for short "the Act, 2ol7"l has not been constituted.
FE?tr! \'- 2 PSI(,J & ]VTR,J W.P.No.65OO of 2O24
This Court had directed the learned coLrnsel for the Department to seek instructions as regards the decision passed by the Bombay High Court in a batch of Writ Petitions where the challenge was to the orcler passed by the appellatc authority under the G.S.T. law, leading case of which being W.p.No.10883 of 2019. 5. Learned counsel for the Department accepts the fact that in the said batch of Writ petitions, the Chairman of the Central lloard of Indirect Taxes and Customs had filed an affidavit, dated 12.lO.2022 whereby the Chairmar_r had given an undertaking that the Department shall not be taking any coercive steps against the assessees pending the constitution of the Tribunal and it becoming fr_rnctiona-1. The said order of the Division Bench of the Bombay High Court and the undertaking given by the Chairman of the Central Board of Indirect Taxes ald Customs still holds good.
In the instant case also, admittedly, the factual matrix is that even though we are in the year, 2024, |ne Tribunal till date has not been constituEd/established. In w.P.No.6503 oJ 2024 the absence of which all the challenges to the orders passed by the G.S.T. Appeilate Authorities are being challenged by way of Writ Petitions before this High Court. In the absence of thc Tribunal being functional, we are compelled to entertain these Writ Petitions and keep them pending after admitti ng the same till the Tribunal is established to hear the appeals or the Writ Petitions itself coming up for hearing whichever is earlier.
In the given factual circumstarces, we are of the considered opinion th at it would be more appropriate to dispose of the Wrlr Perition at this juncture permitting the petitioners to approach the Tribunal immediately within a period of three (3) months from the date of it being established/ functional.
As regards the interim relief raised by the petitioner, considering the fact that the Chairman has already given an undertaking that no coercive steps sha,ll be taken, nonetheless, we are ol the view that in order to strike a balance it would be more appropriate if the petitioner is directed to pay tl.e 2Oo/o of the tax liability as assessed by r.EE \,F\.' 4 PSr(,J & TVTR,J W.P.No.65O3 o.f 2O24 the Assessing Officer, in terms of Scction I 12 oI the Act, 20 17 within a period of four (4) weeks from today. The authoritres concerned shall thereafter be restrained from taking any coercive steps for the enforccment of the order of the Assessing Officer and the Appellate Authority till the disposal ol the appeal
So lar as the interim deposiled ts concerned, the learned <:ounscl for the petitioner submits that he had deposited an amount of Rs.24,OO,O00/- i.e., 109/o that was required to be paid at the time of filing of the first appeal He furthcr submits that as the first appeal \vas partly allowed reducing the tax demand, thc deposited 1O% of the tax demand be lore filing the first appcal rvould be surplus of the prescribcd 10% of the tax in drspute, thus he may be permitted to make the necessary deposit of 2O%o after taking credit of the excess amount of lO% already deposited at the time of filing of the first appeal. 1(). The prayer made by the learned Senior Counsel appearing for the petitioner seems to be reasonable Accordingl1,, in tcrms of Sectiorr 112(7)(b) of the CGST Act, \ W.P.No.65O3 o.f 2O24 the petitioner would bc required to deposit 2O7o of the tax in dispute, after taking credit of the excess amount of 10% to the revised tax demand determined in the hrst appeal 11, The payment oI the 2O'Yo of tax liability, as has been directed as interim measure to the petitioner, shail be done by filling up Form GST DRC-03, wherein at Clause 8 it must clearly be mentioned that the part deposit is being madc against the challengc made to the Order-in-Appeal against w,hich they have come to the High Court and further against nhich they intend to approach the Tribuna-1. 12. Accordingly, the Writ Petition stands disposed of There shall be no order as to costs Consequently, misccllaneous petitions pending, if any, shall stand closecl .N. SRIHARI ASSISTANT REGIS R //// SECTION OFFICER To, 1 . Deputy Commissioner (ST) STU-2, Begumpet Division, Hyderabad-500 01 6. 2. Apbelt'ate Joint Commidsioher of State Tax, Punjagutta Division, Hyderabad- s00 081
The Principal Secretary to Government, Revenue (CT-ll) Department, State of Telangana, Secretariat, Hyderabad.
The S-ecretary, Ministry of Finance, Union of lndia, Jeevan Deep Building, 3rd Floor, Sansad Marg, New Delhi-110 001. 5. ONE CC tO SRI KARTHIK RAIMANA PUTTAMREDDY, AdVOCAIE [OPUC]
Two CCs to SPL GP FOR TAXES, High Court for the State of Telangana. lourl
Two C BN GJP D Copres l I l I I
HIGH COURT DATED:1310312024 ORDER WP.No.6503 of 2024 DISPOSING OF THE WRIT PETITION WITHOUT COSTS oe :\ C {-) 10 fity tnit 'li )l / l-( nr r() t 1 rlE S l?.riir (') ;
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.