M/S. Bharat Traders vs. Union Of INDIA And 3 Others
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The petitioner, M/s. Bharat Traders, challenged orders passed under Section 129(1)(b) and Section 107 of the Central Goods and Services Tax (CGST) Act, 2017, by the Assistant Commissioner and the Additional Commissioner, respectively. The petitioner argued that the absence of a constituted GST Appellate Tribunal prevented them from filing an appeal under Section 112. They expressed willingness to pay the tax and penalty but sought the release of their seized tractor and goods. The petitioner's primary prayers were to quash the impugned orders and direct the release of the seized tractor and goods.
Held
The Court addressed the petitioner's first prayer by referencing a previous Division Bench judgment in Writ Tax No. 655 of 2018. This prior judgment directed the GST Council and the Central Government to take steps to establish the State Bench and Area Benches of the Goods and Services Tax Appellate Tribunal in Uttar Pradesh, with a target for functionality from April 1, 2021. Crucially, it provided that no coercive action would be taken against petitioners pursuant to impugned orders until the Appellate Tribunal is established and the period for filing appeals expires, or appeals are filed. The Court held that the petitioner in the present case was entitled to the same relief regarding the challenge to the impugned orders. Regarding the second prayer for the release of the tractor and goods, the Court noted that the CGST Act, 2017, provides a self-contained procedure for the release of vehicles and goods upon fulfillment of specified conditions under Section 129. The Court held that it could not issue a direction for release as prayed, as it was subject to the petitioner complying with the statutory provisions. The writ petition was disposed of with directions concerning only the first prayer.
Key Issues
1. Whether the petitioner can avail the remedy of appeal to the Appellate Tribunal under Section 112 of the CGST Act, 2017, given that the GST Tribunal has not yet been constituted? 2. Whether the Court should issue a mandamus directing the authorities to release the seized tractor and goods, despite the petitioner's willingness to pay tax and penalty? Petitioner's Arguments: The petitioner contended that the non-constitution of the GST Tribunal under Section 112 of the CGST Act, 2017, rendered them remediless for statutory appeals. They also argued that their tractor and goods seized under Section 129 of the Act should be released, even though they were willing to pay the tax and penalty determined by the authorities. Revenue's Arguments: The judgment does not record specific arguments from the revenue or state respondents regarding the petitioner's contentions.
Sections Cited
Section 129, Section 107, Section 112, Section 109(6)
AI-generated summary — verify with the full judgment below
Court No. - 39 Case :- WRIT TAX No. - 830 of 2020 Petitioner :- M/S. Bharat Traders Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Mohit Behari Mathur Counsel for Respondent :- A.S.G.I.,C.S.C. Hon'ble Mrs. Sunita Agarwal,J. Hon'ble Deepak Verma,J. Parcha/appearance, filed by Sri Rajesh Kumar Singh, Advocate on behalf of respondents No.1 and 2, is taken on record. Heard learned counsel for the petitioner, learned standing counsel for the respondents No. 3 & 4 and Sri Rajesh Kumar Singh, learned counsel for respondents No. 1 and 2. Challenging the order of the original authority under Section 129 (1) (b) of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as 'the C.G.S.T. Act, 2017) as also the order of the first appellate authority under Section 107 of the Act for levy of tax and penalty, the contention of the learned counsel for the petitioner that G.S.T. Tribunal under the Act, 2017 has yet not been constituted. As a result of which, the petitioner cannot avail the remedy of appeal to the Appellate Tribunal under Section 112 of the Act, 2017. Further contention is that the petitioner has shown his willingness to pay the tax and penalty fixed by the C.G.S.T. authority under Section 129 (1) (b) of the Act, 2017 but the vehicle/tractor and goods seized under Section 129 of the Act, have not been released. The first and second prayer are to the following effect:- "(i) Issue a suitable writ, order or direction in the nature of certiorari quashing the impugned orders dated 29.10.2020 passed by Assistant Commissioner (mobile Squad-7) Commercial Tax, Ghaziabad in Mov-9 NO.2021100983142047 and order dated 28.11.2020 passed by Additional Commissioner, Grade-2, Division-4, Commercial Tax, Ghaziabad in Appeal No.GHA 4/0999/2020 under UPGST Act 2017 read with Section 129 (3) as well as tax and penalty levied under Section 129 (1) (b) may be held invalid contained in (Annexure No. 3 and 4 of writ petition. (ii) Issue a writ order or direction in the nature of mandamus directing the respondents authorities to release the tractor trolly having registration No.U.P. 74U/3587 with shape and sanction load seized the same may be given to custody of the proprietor Anil Kumar on such term and conditions." As far as the first prayer of the petitioner regarding the challenge to the order of the authorities under the C.G.S.T. Act, 2017 is concerned, the Division Bench of this Court, while disposing the Writ Tax No.655 of 2018 along with the connected writ petitions filed before this Court challenging the orders of the C.G.S.T. authorities, has issued the following directions:- "
It is pertinent to mention that dealers in the State of Uttar Pradesh falling under the CGST Act/ U.P. GST Act and aggrieved with the orders of first appellate authority under Section 107, have been left remediless inasmuch as Appellate Tribunal under the Act is not available in the State of Uttar Pradesh for preferring appeals under Section 112 of the CGST Act/ U.P. GST Act. The Appellate Tribunal being the last fact finding authority and its not availability in the State of Uttar Pradesh, is causing serious prejudice to the rights of aggrieved persons for statutory appeal which is continuing since the enactment of the CGST Act/ U.P. GST Act. Therefore, in peculiar facts and circumstances of the case and in view of the legislative mandate of Section 109(6) of the CGST Act, we direct as under: (i) The GST Council shall forward its recommendation of Agenda Item No.6 of the 39th Meeting held on 14.03.2020 to the Central Government/ respondent No.1 within two weeks from today. (ii) Thereafter, the respondent No.1/ Central Government shall, within next four weeks, specify by notification in terms of sub-Section (6) of Section 109 of the CGST Act the "State Bench" at Prayagraj (Allahabad), of the Goods and Services Tax Appellate Tribunal and four Area Benches at Ghaziabad, Lucknow, Varanasi and Agra, in the State of Uttar Pradesh for exercising the powers of the Appellate Tribunal. (iii) The respondent Nos.1, 2, 3 and 6 shall ensure that the State Bench and the Area Benches of the Appellate Tribunal (Goods and Service Tax Appellate Tribunal) in the State of Uttar Pradesh are made functional as far as possible from 01.04.2021. (iv) Since the challenge to the impugned orders relates to questions of fact and the Appellate Tribunal is the last fact finding authority, therefore, we leave it open for all the petitioners to challenge the impugned orders before the Appellate Tribunal under Section 112 of the CGST Act/ U.P. GST Act as and when the State Bench and Area Benches of the Appellate Tribunal are constituted in the State of Uttar Pradesh. However, till expiry of the period of limitation for filing appeals under Section 112 of the CGST Act after establishment of the State Bench and Area Benches or till appeals are filed, whichever is earlier, no coercive action shall be taken against the petitioners herein pursuant to the impugned orders passed by the first authority or the first appellate authority. Liberty is also granted to the petitioners to avail such remedy as available to them under law in respect of other reliefs which have not been considered and decided by this judgment.
For all the reasons stated above, the writ petitions are disposed off as indicated above. Accordingly, the relief Nos.(A), (D-1) and (E-1), are granted. There shall be no order as to costs." We find that the petitioner herein is entitled for the same relief. As far as second prayer is concerned, we may note that a self contained procedure has been provided under the C.G.S.T. Act, 2017 for release of the vehicle on fulfillment of the conditions after seizure of the goods and conveyance under Section 129 of the Act, itself. The petitioner has to comply with the provisions of the Act. The release of the goods and vehicles would be subject of the compliance of the requisite conditions by the petitioner. No direction as prayed for in the prayer no. 2 can be issued by this Court. The writ petition is, accordingly, disposed of with the above directions with regard to only prayer no. (i). Order Date :- 22.2.2021 Meenu
Reproduced from the public record of the Allahabad High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.