Interim Stay Granted; Non-Constitution of Tribunal; Additional Deposit Required
Issue: Whether an interim stay should be granted against an order passed by the first appellate authority when the GST Tribunal, where the assessee intends to file an appeal, has not yet been constituted.
Facts:
- The assessee was aggrieved by an order passed by the first appellate authority.
- The assessee wanted to file an appeal before the Tribunal; however, the Tribunal had not yet been constituted.
- The assessee filed a writ petition seeking interim relief.
Decision:
- The court, following the decision in Maa Tarini Traders v. State of Odisha (Orissa), granted an interim stay of the impugned order.
- The stay was subject to the assessee depositing 10 percent of the disputed tax amount over and above the 10 percent already deposited for filing the appeal.
Key Takeaways:
- Non-Constitution of Tribunal: When the GST Tribunal is not constituted, the High Court can exercise its writ jurisdiction to grant interim relief.
- Interim Relief: Courts can grant interim relief to protect the interests of the assessee pending the constitution of the Tribunal.
- Additional Deposit: The court imposed a condition of an additional 10 percent deposit of the disputed tax amount to balance the interests of the revenue and the assessee.
- Precedent: The court relied on the precedent set in Maa Tarini Traders v. State of Odisha (Orissa), ensuring consistency in judicial decisions.
- Protection of Assessee’s Rights: The interim stay protects the assessee from immediate enforcement of the impugned order.
- The court is taking a practical approach, and granting interim relief, while also protecting the revenue’s interests.
HIGH COURT OF ORISSA
Durga Prasanna Sahu
v.
Additional State Tax Officer, CT and GST Circle
Arindam Sinha, Actg CJ.
and M.S. Sahoo, J.
and M.S. Sahoo, J.
W.P.(C) No.26577 of 2024
FEBRUARY 11, 2025
Bijay Panda, Adv. for the Petitioner. D. Das, Addl. Standing Counsel for the Respondent.
ORDER
1. Mr. Panda, learned advocate appears on behalf of petitioner and submits, his client is aggrieved by order dated 11th July, 2024 made by the First Appellate Authority. He wants to appeal therefrom to the Tribunal but it has not yet been constituted. In the circumstances assesses and the department were complying with directions made on order dated 16th February, 2024 by the First Division Bench in a batch of writ petitions, lead case being WP(C) no.42015 of 2023 (M/s. Maa Tarini Traders v. State of Odisha and others).
2. The directions included requiring the assessee to deposit 10% of the disputed amount of tax on filing the appeal and further 20% of remaining disputed tax, for the impugned order to be stayed.
3. He submits, his client is up against State revenue. There was modification dated 16th August, 2024 made by Central revenue reducing latter deposit to 10%. Now, State revenue has correspondingly notified on 29th October, 2024. In the circumstances, th the writ petition be disposed of as covered by order dated 16th February, 2024 (supra) with modification for deposit of 10% of remaining disputed tax for impugned order to remain stayed.
4. Mr. Das, learned advocate, Additional Standing Counsel appears on behalf of State revenue.
5. We accept submission made on behalf of petitioner regarding corresponding notification reducing requirement of the deposit to 10% of disputed tax for impugned first appellate order to remain stayed. The deposit be made accordingly.
6. The writ petition is accordingly disposed of.