Facts of the Case

M/s. P A Project Pvt. Limited challenged an order dated 27.10.2023 passed under Section 73 of the CGST/OGST Act for the tax periods July 2017 to March 2018, which had been affirmed in appeal on 15.09.2025. The petitioner's grievance was that the further statutory remedy of a second appeal under Section 112 lay to the GST Appellate Tribunal (GSTAT), which, at the time the petition was filed, had not been constituted or made functional, leaving it unable to pursue that remedy.

Issues Involved

  1. Whether a writ petition challenging an appellate order should be entertained or the petitioner relegated to the newly functional GSTAT.
  2. How the mandatory pre-deposit under Section 112(8) and the staggered GSTAT filing timelines under the Central Government's notification dated 17.09.2025 apply to such a petitioner.

Petitioner's Arguments

  • As the GSTAT was not constituted and functional, the petitioner could not be rendered remediless and the writ court's intervention was warranted.

Respondent's Arguments

  • Confirmed that the GSTAT had not been constituted and made functional at the relevant time, but argued this does not absolve the petitioner from complying with the mandatory pre-deposit under Section 112(8) before an appeal can be filed.

Court Order / Findings

  • Section 112(8) bars filing of an appeal unless the appellant pays, in full, the admitted tax/interest/penalty and 10% of the remaining disputed tax (subject to a Rs 20 crore cap).
  • The Court took note of the Central Government notification dated 17.09.2025 (S.O. No. 4220(E)), notifying 30.06.2026 as the date up to which appeals may be filed before the now-functional GSTAT for orders communicated before 01.04.2026, and of the GSTAT's staggered e-filing schedule based on the date of the underlying first appeal (ARN/CRN date).
  • It is settled that a writ court can entertain a challenge where the statutory appellate forum is not functional, but once the forum becomes available with a defined filing window, the writ court should not keep the matter pending — the dispute is properly left to that forum.
  • The writ petition was disposed of with a direction that the petitioner deposit the amount required under Section 112(8) and file its appeal within the staggered timeline specified in the GSTAT e-filing advisory; if filed and found compliant, the appeal shall be entertained by the GSTAT on merits.
  • The Court expressly clarified it expressed no opinion on the merits of the first appellate order.

Important Clarification

  • With the GSTAT now being operationalised under the notification dated 17.09.2025, taxpayers whose writ petitions were filed only because the Tribunal was non-functional are now expected to migrate to the GSTAT within the staggered filing windows tied to their original ARN/CRN dates, rather than have the writ court decide the merits.
  • The Section 112(8) pre-deposit condition (full admitted amount plus 10% of the disputed balance, capped at Rs 20 crore) remains a mandatory precondition for the second appeal even after the Tribunal becomes functional.

Sections Involved

  • Section 73, CGST/OGST Act, 2017 — determination of tax not involving fraud or suppression.
  • Section 112, CGST Act, 2017 — appeals to and constitution of the GST Appellate Tribunal.
  • Section 112(8), CGST Act, 2017 — mandatory pre-deposit for filing a second appeal.

Decision – In Favour of

Disposed of with directions, without expressing any opinion on merits — neither clearly in favour of the Assessee nor the Department; the petitioner is directed to the GSTAT subject to the Section 112(8) deposit.

Case Details

High Court of Orissa at Cuttack; W.P.(C) No. 29526 of 2025; Coram: Hon'ble the Chief Justice Harish Tandon and Hon'ble Mr. Justice Murahari Sri Raman; Order dated 04.12.2025.

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