Facts of the Case

This common order of the High Court of Orissa at Cuttack disposed of a batch of over two hundred and forty writ petitions, headed by M/s Pravat Kumar Choudhury and others v. Additional State Tax Officer, CT & GST, Cuttack and others (W.P.(C) No.6684 of 2023), filed by individual taxpayers, proprietorships and firms from across Odisha. The petitioners, invoking Articles 226 and 227 of the Constitution of India, challenged first appellate orders passed by the Joint Commissioner of State Tax (Appeal), CT & GST, rejecting their statutory appeals as barred by the limitation prescribed under sub-section (1) read with sub-section (4) of Section 107 of the Odisha Goods and Services Tax/Central Goods and Services Tax Act, 2017. Respondents included the Additional State Tax Officer, the Joint Commissioner (Appeal), and the Commissioner of CT & GST, Cuttack, represented by Standing Counsel for the State GST Department along with Standing Counsel for CGST, CX & Customs and the Deputy Solicitor General of India. While the petitions were pending, the Ministry of Finance issued Notification No.53/2023-Central Tax dated 2 November 2023, creating a special one-time procedure for taxpayers whose Section 107 appeals against orders under Sections 73 or 74 were rejected solely on limitation, permitting them to file appeals up to 31 January 2024 on payment of specified pre-deposit amounts. The matters were heard in hybrid mode and disposed of by the common order dated 6 November 2023, coram Acting Chief Justice Dr. B.R. Sarangi and Justice Murahari Sri Raman.

Issues Involved

  1. Whether appellate orders rejecting GST first appeals as time-barred under Section 107 of the OGST/CGST Act could be sustained after the intervening issuance of CBIC's amnesty Notification No.53/2023-Central Tax.
  2. Whether petitioners left without recourse to the (as yet unconstituted) GST Appellate Tribunal under Section 112 were entitled to interim protection and remand under Articles 226/227.

Petitioner's Arguments

  • The appellate authorities mechanically rejected appeals filed beyond the period prescribed under Section 107(1) read with Section 107(4), without regard to the genuine difficulties faced by small taxpayers across Odisha.
  • With the GST Appellate Tribunal under Section 112 still not constituted, petitioners had no efficacious alternate remedy against the impugned rejection orders.
  • Petitioners were entitled to the benefit of the newly notified amnesty scheme under Notification No.53/2023-Central Tax, which was framed specifically for the class of persons whose appeals were rejected solely on limitation grounds.

Respondent's Arguments

  • Standing Counsel for the CT & GST Department, CGST/CX/Customs, and the Deputy Solicitor General of India for the Union of India did not seriously contest the applicability of the newly issued Notification No.53/2023-Central Tax once it was placed on record.
  • The State's position proceeded on the basis that the matters would be governed by the terms of the fresh notification rather than by continued opposition to the writ petitions.

Court Order/Findings

  • The Court took note of Notification No.53/2023-Central Tax dated 2 November 2023, permitting taxpayers whose Section 107 appeals were rejected solely for being time-barred to file appeals up to 31 January 2024, on payment of admitted tax plus 12.5% of the disputed tax (capped at Rs.25 crore, at least 20% via the Electronic Cash Ledger).
  • Applying the Notification, the Court set aside the impugned appellate orders and remanded all the matters to the Appellate Authority to be decided afresh in accordance with law.
  • Tax already deposited by petitioners under interim orders or suo motu was directed to be accounted for while deciding the appeals, with refund, if any, to abide by the outcome.

Important Clarification

  • Notification No.53/2023-Central Tax is a one-time amnesty allowing appeals against Section 73/74 orders rejected solely on limitation to be filed up to 31 January 2024, conditional on payment of admitted tax in full and 12.5% of the disputed tax (Rs.25 crore cap, 20% via Cash Ledger).
  • No refund is available under the Notification for amounts already paid in excess of the specified sum before its issuance.
  • Non-constitution of the GST Appellate Tribunal does not itself excuse the Section 107 limitation, but courts will apply an intervening beneficial notification even to previously rejected appeals.

Sections Involved

  • Section 107, CGST/OGST Act, 2017 — limitation for filing a first appeal against an adjudication order.
  • Section 112, CGST Act, 2017 — appeal to the GST Appellate Tribunal, not constituted at the relevant time.
  • Sections 73/74, CGST Act, 2017 — determination of tax short-paid, without and with fraud, underlying the original demand orders.
  • Section 148, CGST Act, 2017 — power to notify special procedures, the basis for Notification No.53/2023-Central Tax.
  • Articles 226 and 227, Constitution of India — writ jurisdiction invoked.

Decision – In Favour of

Disposed of with directions in favour of the Assessees — the impugned rejection orders were set aside across all connected petitions and the appeals remanded for fresh consideration pursuant to Notification No.53/2023-Central Tax.

Related Case Laws

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

Case Details

  • Court: High Court of Orissa at Cuttack
  • Case No.: W.P.(C) No.6684 of 2023 and Batch of Writ Petitions
  • CNR: Not available on record
  • Coram: Acting Chief Justice Dr. B.R. Sarangi and Justice Murahari Sri Raman
  • Decision Date: 06.11.2023
  • Disposal Nature: Disposed of — impugned appellate orders set aside, matters remanded to the Appellate Authority pursuant to Notification No.53/2023-Central Tax

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