Facts of the Case

The petitioner challenged a rejection order dated 22.05.2023 (A.O.No.DIN3722052325035, previously assessed to tax and penalty of Rs.41,76,972/- under Section 74(1) of the APGST/CGST Act) whereby its appeal was rejected on the technical ground of a 69-day delay in filing, beyond the condonable period under Section 107. As the GST Appellate Tribunal under Section 112 of the APGST Act had not been constituted, the petitioner could not pursue a second appeal and approached the High Court directly.

Issues Involved

  1. Whether the writ court should condone the delay and remit a GST appeal that was rejected as time-barred, where the second-appeal forum (GSTAT) does not yet exist to otherwise provide a remedy.

Petitioner's Arguments

  • The petitioner's counsel argued that in the absence of a constituted GSTAT, the petitioner would be left without any remedy if the delay in the first appeal was not condoned by the writ court itself, and relied on a Telangana High Court Division Bench ruling (W.P.No.27071 of 2022) where, in similar circumstances, the matter was remitted to the primary authority for reconsideration.

Respondent's Arguments

  • The Government Pleader, while opposing the writ petition, submitted that if the Court were inclined to allow it, suitable conditions should be imposed.

Court Order / Findings

  • The Court found the Telangana Division Bench precedent directly applicable "with all its fours," since it addressed the identical problem of GSTAT's non-constitution leaving an aggrieved taxpayer without a further remedy.
  • The Court allowed the writ petition, condoned the delay of 69 days in filing the appeal, and remitted the matter to the appellate authority for consideration and a reasoned order after hearing both parties, on the condition that the petitioner deposit an additional 10% of the disputed tax over and above any amount already deposited, within three weeks.

Important Clarification

  • Where the GST Appellate Tribunal has not been constituted, leaving an assessee with no forum to challenge a first-appeal rejection on limitation grounds, High Courts have stepped in to condone the delay themselves and remit the appeal for a decision on merits — but typically condition such relief on an additional pre-deposit (commonly 10% of the disputed tax) to protect the revenue's interest during the remand.
  • This approach treats GSTAT's non-constitution as sufficient special circumstance to justify writ-court intervention in what would otherwise be a purely limitation-based rejection, rather than leaving the assessee with no avenue at all.

Sections Involved

  • Section 107 of the CGST/APGST Act, 2017 - prescribes the limitation period for the first appeal and the Appellate Authority's condonable delay.
  • Section 112 of the CGST/APGST Act, 2017 - provides for the second appeal to the GST Appellate Tribunal, not yet constituted.

Decision – In Favour of

The writ petition was allowed in favour of the Assessee, subject to an additional 10% pre-deposit; the appeal was restored for decision on merits.

Case Details

High Court for the State of Andhra Pradesh, Writ Petition No.18643 of 2023; Coram: Hon'ble Sri Justice U. Durga Prasad Rao and Hon'ble Smt. Justice Venkata Jyothirmai Pratapa; decided on 26 July 2023.

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