Facts of the Case

The petitioner was assessed to tax and penalty of Rs. 41,76,972 under Section 74(1) of the APGST/CGST Act by the Assistant Commissioner (ST) (FAC), Parvathipuram Circle, vide Order No. DIN3722052399259 dated 22.05.2023. The petitioner's appeal against this order was rejected on the technical ground that it was filed beyond the condonable period, by order (ZD3710220070535) dated 20.10.2022 [order sequencing as per record]. Since the GST Appellate Tribunal under Section 112 of the APGST Act, 2017 had not been constituted, the petitioner had no forum to carry the matter further and approached the High Court seeking condonation of the 69-day delay and reconsideration.

Issues Involved

  1. Whether the writ court should intervene to condone delay and direct reconsideration of an appeal rejected on limitation, where the Appellate Tribunal has not been constituted, leaving the assessee without any further statutory remedy.

Petitioner's Arguments

  • Since the Appellate Tribunal under Section 112 of the APGST Act had not been constituted, the petitioner had no avenue to pursue the matter further unless the delay in the first appeal was condoned and reconsideration permitted, causing much hardship.
  • Reliance was placed on a Division Bench ruling 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 primary authority for reconsideration.

Respondent's Arguments

  • The learned Government Pleader did not seriously oppose the relief on merits but submitted that if the Court were inclined to allow the writ petition, suitable conditions/terms ought to be imposed.

Court Order / Findings

  • The Court considered the coordinate Telangana High Court ruling in W.P. No. 27071 of 2022, where, given non-constitution of the GST Tribunal, the matter was remitted for reconsideration to avoid leaving the assessee without remedy, and held that the same reasoning applied on all fours to the case at hand.
  • The Court held that since the appeal had been rejected only on the technical ground of a 69-day uncondonable delay, and the GST Tribunal had not been constituted to enable further statutory recourse, in the interest of justice the delay deserved to be condoned and the matter remitted, conditional on the petitioner depositing an additional 10% of the disputed tax (over and above the amount already deposited) within three weeks.
  • The writ petition was allowed with no costs, with the appellate authority directed to reconsider and pass appropriate orders after hearing both parties.

Important Clarification

Where the GST Appellate Tribunal has not been constituted under Section 112 of the GST Act, leaving an assessee without further statutory remedy, High Courts have consistently exercised writ jurisdiction to condone even limitation-barred delays in the first appeal and remit matters for reconsideration on merits, typically conditioning such relief on deposit of an additional 10% of the disputed tax.

Sections Involved

  • Section 74, CGST/APGST Act, 2017 — governs determination of tax not paid by reason of fraud or suppression.
  • Section 107, CGST/APGST Act, 2017 — prescribes limitation for filing the first appeal.
  • Section 112, CGST/APGST Act, 2017 — provides for the second appeal to the Appellate Tribunal, non-constitution of which was central to the relief granted.

Decision – In Favour of

Disposed of with directions, in favour of the Assessee — delay was condoned and the matter remitted for reconsideration on merits, subject to an additional 10% pre-deposit.

Case Details

  • Court: High Court of Andhra Pradesh
  • Case Number: WP No.18642 of 2023
  • CNR / Citation: WP No.18642 of 2023
  • Coram: Hon'ble Sri Justice U. Durga Prasad Rao & Hon'ble Smt. Justice Venkata Jyothirmai Pratapa
  • Date of Order: 26 July 2023

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