Writ Petition No.18639 of 2023

Facts of the Case

The petitioner, registered under GSTIN 37AAOPR4812K1Z6, was assessed to tax and penalty of Rs.41,76,972 under Section 74(1) of the APGST/CGST Act. The petitioner's first appeal against the assessment order was rejected by order dated 22.05.2023 on the ground that it was filed with an uncondonable delay of 69 days, beyond the statutory period and the further condonable period under the Act. Since the GST Appellate Tribunal under Section 112 of the APGST Act had not been constituted, the petitioner had no further avenue of appeal and approached the Andhra Pradesh High Court under Article 226 seeking to have the delay condoned and the appeal considered on merits.

Issues Involved

  1. Whether the appellate authority's rejection of the appeal for a 69-day uncondonable delay could be interfered with in writ jurisdiction.
  2. Whether non-constitution of the GST Appellate Tribunal justified condoning the delay to prevent the petitioner from being left without any remedy.
  3. On what terms such relief, if granted, should be conditioned.

Petitioner's Arguments

  • Counsel submitted that since the GST Appellate Tribunal has not been constituted under Section 112 of the APGST Act, the petitioner would be left without any further remedy and would suffer much hardship if the delay in filing the first appeal were not condoned.
  • Reliance was placed on a Division Bench order of the Telangana High Court (W.P.No.27071 of 2022), where in similar circumstances the writ petition was allowed and the matter remitted to the assessing authority for reconsideration.

Respondent's Arguments

  • The Government Pleader for Commercial Tax did not oppose relief outright, but submitted that if the Court was inclined to allow the writ petition, suitable terms should be imposed to safeguard revenue interests.

Court Order / Findings

  • The Court held that since the GST Tribunal has not been constituted so as to enable the petitioner to pursue further legal remedies, the petitioner should not be left without any remedy, and found the Telangana High Court precedent squarely applicable to the facts.
  • The writ petition was allowed, the delay in filing the appeal was condoned, and the matter was remitted to the appellate authority for consideration on merits after hearing both parties, on the condition that the petitioner deposit an additional 10% of the disputed tax, over and above amounts already deposited, within three weeks.

Important Clarification

  • Non-constitution of the GST Appellate Tribunal is treated as sufficient ground to condone even a delay the statute itself characterises as uncondonable at the first-appeal stage, so that an assessee is not rendered remediless pending the Tribunal's constitution.
  • Such condonation is typically conditioned on an additional pre-deposit over the amount already secured, balancing the assessee's access to remedy against the revenue's interest in ensuring some measure of security for the disputed demand.
  • High Courts across jurisdictions have converged on this approach of remitting time-barred first appeals for fresh consideration on terms, rather than leaving taxpayers to await eventual constitution of the Tribunal before any relief becomes available, and such coordinate rulings from sister High Courts are commonly relied upon as persuasive precedent.

Sections Involved

  • Section 74, APGST/CGST Act, 2017 — determination of tax by reason of fraud or wilful misstatement, under which the original assessment and penalty were raised.
  • Section 107, CGST Act, 2017 — limitation for filing the first appeal, including the outer condonable period beyond which the appellate authority ordinarily has no power to condone delay.
  • Section 112, APGST Act, 2017 — provides for the GST Appellate Tribunal as the second-appeal forum, not yet constituted at the relevant time, necessitating recourse to writ jurisdiction.

Decision – In Favour of

The decision is substantially in favour of the assessee, with the delay condoned and the appeal remitted for consideration on merits, subject to an additional 10% pre-deposit.

Case Details

Court: High Court of Andhra Pradesh at Amaravati
Case Number: Writ Petition No.18639 of 2023
Coram: Hon'ble Sri Justice U. Durga Prasad Rao and Hon'ble Smt. Justice Venkata Jyothirmai Pratapa
Date of Order: 26.07.2023

Link to Download the Order

Click here to view/download the full order

Disclaimer

This content is shared strictly for general information and knowledge purposes only. Readers should independently verify the information from reliable sources. It is not intended to provide legal, professional, or advisory guidance. The author and the organisation disclaim all liability arising from the use of this content. The material has been prepared with the assistance of AI tools.