Facts of the Case

The petitioner, M/s. Thotakura Venu Madhava Rao, a sole proprietorship represented by its proprietor Sri Thotakura Venu Madhava Rao, carrying on business at Ongole, Prakasam District, challenged proceedings of the Assistant Commissioner of State Taxes, Ongole (respondent no.1) dated 25.02.2023 (Ref. ZD3702230122133), determining tax liability for the period April 2019 to March 2020 based on discrepancies between GSTR-7 (TDS returns) and GSTR-3B, passed under Rule 142(5) read with Sections 73/74 of the APGST/CGST Act, 2017. The petitioner had preferred a statutory appeal under Section 107 before the Additional Commissioner of State Tax and Appellate Authority (respondent no.2), but the appeal was filed 85 days beyond limitation. The petitioner had deposited 10% of the disputed tax at the time of filing the appeal.

Issues Involved

  1. Whether the delayed appeal against the assessment order could be regularised in light of CBIC Notification No.53/2023-Central Tax dated 02.11.2023 (the GST Amnesty Notification for condonation of delayed appeals).
  2. Whether the petitioner was entitled to interim protection against recovery/attachment pending compliance with the notification.
  3. What directions were required for the appellate authority to entertain and decide the pending appeal.

Petitioner's Arguments

  • The appeal filed under Section 107 against the assessment order was admittedly barred by limitation by 85 days, but the petitioner had already deposited 10% of the remaining disputed tax as required under Section 107.
  • Under CBIC Notification No.53/2023-Central Tax dated 02.11.2023, a pending appeal filed beyond limitation is deemed to have been filed in accordance with the notification if the Para 3 conditions (payment of admitted tax plus 12.5% of the remaining disputed tax, capped, with at least 20% from the Electronic Cash Ledger) are fulfilled, with fresh appeals permissible up to 31.01.2024.
  • Since the petitioner was ready to comply with the notification's conditions, the pending appeal should be treated as within time and considered on merits by the appellate authority.
  • Despite the 10% pre-deposit made at the time of filing the appeal, which ordinarily results in a deemed stay of the disputed demand under Section 107, the respondents had proceeded to attach the petitioner's property, and this attachment should be lifted.

Respondent's Arguments

  • The Government Pleader for Commercial Tax submitted that, in view of Notification No.53/2023-Central Tax, the matter could appropriately be considered by the appellate authority in accordance with the conditions prescribed therein.
  • No serious opposition was raised to the petitioner's request that the pending appeal be treated as covered by the amnesty notification, subject to compliance with its conditions.

Court Order/Findings

  • The Court noted that the petitioner's appeal, though filed beyond limitation, could be regularised under Notification No.53/2023-Central Tax dated 02.11.2023, applicability of which was not disputed by the respondents.
  • The writ petition was disposed of directing the petitioner to approach the appellate authority and comply with the conditions in Para 3 of the notification, whereupon the appellate authority shall consider the petitioner's pending appeal in accordance with law.
  • On the attachment grievance, the Court held that since the appeal, when filed, was admittedly not within time, the deemed stay under Section 107 had not come into effect; however, if the petitioner complies with Para 3 of the notification and applies for lifting of the attachment, the appellate authority shall consider that application and pass appropriate orders having regard to Section 107 and the notification.
  • No order as to costs was passed, and pending miscellaneous petitions, if any, stood closed.

Important Clarification

  • CBIC Notification No.53/2023-Central Tax dated 02.11.2023 allows taxpayers whose Section 107 appeals against orders under Sections 73/74 (passed on or before 31.03.2023) were rejected or not filed within limitation to file/regularise appeals up to 31.01.2024, subject to payment of admitted tax dues plus 12.5% of the remaining disputed tax (capped at Rs.25 crore, at least 20% from the Electronic Cash Ledger).
  • A deemed stay of recovery under Section 107 does not automatically apply where the original appeal was filed beyond limitation; the amnesty notification's conditions must first be satisfied for the appeal, and any consequential stay/de-attachment, to be considered by the appellate authority.
  • Courts are readily directing taxpayers to the statutory amnesty mechanism rather than deciding limitation questions on writ, where the notification squarely covers the taxpayer's situation.

Sections Involved

  • Sections 73 and 74 of the APGST/CGST Act, 2017 — provide for determination of tax not paid/short paid, without and with allegation of fraud respectively.
  • Rule 142(5) of the APGST Rules, 2017 — prescribes the summary of the order to be issued along with the determination under Sections 73/74.
  • Section 107 of the CGST/APGST Act, 2017 — governs appeals to the Appellate Authority, including limitation and pre-deposit requirements.
  • CBIC Notification No.53/2023-Central Tax dated 02.11.2023 — special one-time procedure/amnesty allowing regularisation of appeals filed beyond limitation against orders under Sections 73/74.

Decision – In Favour of

Disposed of with directions, in part in favour of the Assessee — the petitioner was granted the opportunity to have its time-barred appeal considered on merits under the GST Amnesty Notification, subject to compliance with its payment conditions, but the Court did not itself decide the correctness of the underlying tax demand or grant an unconditional stay of the attachment.

Related Case Laws

No directly on-point case notes are currently published on this site.

Case Details

  • Court: High Court of Andhra Pradesh at Amaravati
  • Case No.: Writ Petition No.28629 of 2023
  • CNR: Not available on record
  • Coram: Hon'ble Sri Justice Ravi Nath Tilhari and Hon'ble Sri Justice V. Srinivas
  • Decision Date: 03.11.2023
  • Disposal Nature: Disposed of with directions regarding appeal filed under GST Amnesty Notification

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