Facts of the Case

The lead petitioner, M/S Pravat Kumar Choudhury, Cuttack, along with a batch of over 240 connected writ petitioners across Odisha, had their first appeals against orders passed under Sections 73/74 of the OGST/CGST Act, 2017 rejected by the Appellate Authority solely on the ground of delay, being barred by the period stipulated in Section 107(1) read with Section 107(4) of the Act. Since the second Appellate Tribunal under Section 112 of the Act had not yet been constituted, the petitioners were also prevented from availing that alternative statutory remedy. During the pendency of these petitions, the Ministry of Finance's Central Board of Indirect Taxes and Customs issued Notification No.53/2023-Central Tax [S.O.4767(E)] dated 2 November 2023, prescribing a special procedure for taxable persons whose appeals had been rejected solely on the ground of limitation.

Issues Involved

  1. Whether the impugned orders rejecting the petitioners' appeals solely on the ground of limitation could stand, in light of the subsequently issued amnesty Notification No.53/2023-Central Tax.
  2. What consequential directions were required regarding amounts already deposited by the petitioners pending these writ petitions.

Petitioner's Arguments

  • The petitioners' appeals had been rejected purely on limitation grounds under Section 107(1) read with Section 107(4) of the OGST/CGST Act, without the Appellate Authority going into the merits.
  • Since the second appellate remedy under Section 112 remained unavailable due to non-constitution of the Tribunal, the petitioners were left without recourse absent intervention by the Court.

Respondent's Arguments

  • The State and Central GST authorities did not dispute the applicability of Notification No.53/2023-Central Tax, issued under Section 148 of the CGST Act, to the class of persons whose appeals were rejected solely on limitation grounds.

Court Order / Findings

  • The Court held that, in view of Notification No.53/2023-Central Tax dated 2 November 2023 — which permits taxable persons whose appeals were rejected solely on limitation grounds to file a fresh appeal in FORM GST APL-01 on or before 31 January 2024, subject to payment of the admitted tax and 12.5% of the disputed tax in dispute (with at least 20% through the Electronic Cash Ledger) — the impugned orders rejecting the petitioners' appeals on limitation grounds were liable to be set aside and the matters remanded to the Appellate Authority.
  • The Court directed that any amount already deposited by the petitioners, whether pursuant to interim orders of the Court or suo motu, be taken into account while the Appellate Authority decides the appeals on merit, with refund, if any, subject to the outcome of the appeal.
  • All the batch writ petitions were disposed of by this common order with the above observations and directions.

Important Clarification

Where GST first appeals have been rejected solely on the ground of limitation, and the Central Government subsequently issues a special-procedure amnesty notification under Section 148 of the CGST Act permitting a fresh appeal window for that specific class of persons, courts will set aside the limitation-based rejection and remand the matter to the Appellate Authority to decide the appeal on merits under the terms of that notification, without independently examining whether the original delay ought to have been condoned.

Sections Involved

  • Section 107(1) and (4), CGST/OGST Act, 2017 – prescribe the limitation period (and permissible condonation) for filing a first appeal.
  • Section 112, CGST Act, 2017 – provides for a second appeal to the GST Appellate Tribunal, unavailable here due to non-constitution of the Tribunal.
  • Section 148, CGST Act, 2017 – empowers the Government to notify special procedures for a specified class of persons, the basis for Notification No.53/2023-Central Tax.

Decision – In Favour of

The decision was in favour of the Assessees (the batch of petitioners), with the limitation-based rejection orders set aside and the appeals remanded for consideration on merits under the amnesty notification.

Case Details

  • Court: High Court of Orissa at Cuttack
  • Case Number: W.P.(C) No.6684 of 2023 and connected batch of 245 writ petitions
  • Coram: Acting Chief Justice Dr. B.R. Sarangi and Mr. Justice Murahari Sri Raman
  • Date of Order: 06 November 2023

Link to Download the Order

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