Facts of the Case

Sagarika Biswal challenged an order dated 17.02.2022 passed under Section 74 of the CGST/OGST Act for the tax periods July 2017 to March 2018, which had been affirmed by the Appellate Authority on 16.10.2025. Since the second appellate remedy under Section 112 lies to the GST Appellate Tribunal (GSTAT), and the GSTAT had not been constituted or made functional, the petitioner approached the High Court to avoid being rendered remediless.

Issues Involved

  1. Whether the writ court can keep the petition pending now that the GSTAT has been constituted and a structured filing timeline notified.
  2. Whether the mandatory pre-deposit under Section 112(8) of the GST Act applies even to appellants who were earlier unable to approach the GSTAT due to its non-constitution.

Petitioner's Arguments

  • The statutory remedy of appeal to the GSTAT under Section 112 was not available since the Tribunal had not been constituted and made functional, and an aggrieved person cannot be rendered remediless.

Respondent's Arguments

  • Corroborated that the GSTAT had not been constituted or functional at the relevant time, but insisted that this does not absolve the petitioner from complying with the mandatory pre-deposit under Section 112(8) — full payment of admitted tax/interest/fine/fee/penalty plus 10% of the remaining disputed tax (subject to a cap of Rs.20 crore) — before an appeal can be filed.

Court Order / Findings

  • Noted that it is well settled that a writ court can be approached where the statutory appellate forum is not functional, but where conditions are attached to filing an appeal before that forum, the writ court must ensure strict compliance rather than allow a departure from the statutory scheme.
  • Took note of the CBIC Notification (S.O.4220(E) dated 17.09.2025) extending the window for filing GSTAT appeals up to 30.06.2026 for orders communicated before 01.04.2026, and the staggered 'User Advisory for the GSTAT e-Filing Portal' timeline for filing second appeals based on the date of the first appellate order/notice.
  • Held that since the GSTAT is now functional and the filing period has been extended in a structured manner, it would not be proper to keep the writ petition pending, as the dispute can be adjudicated by the GSTAT itself.
  • Disposed of the writ petition, directing the petitioner to deposit the amount required under Section 112(8) (if not already deposited) and file the appeal within the notified timeline, with the GSTAT to entertain the appeal if found in order, while expressly not opining on the merits of the first appellate order.

Important Clarification

  • Now that the GST Appellate Tribunal has been constituted and a staggered e-filing schedule (per CBIC Notification No. S.O.4220(E) dated 17.09.2025, extending the filing window up to 30.06.2026) is operative, High Courts will decline to keep writ petitions pending merely on the earlier ground of the Tribunal's non-constitution. Assessees must still comply with the mandatory pre-deposit under Section 112(8) and file the second appeal within the notified timelines linked to the date of their first appellate order.

Sections Involved

  • Section 74, CGST/OGST Act, 2017 — determination of tax by reason of fraud/wilful misstatement/suppression.
  • Section 112(8), CGST Act, 2017 — mandatory pre-deposit for filing an appeal before the GSTAT.
  • Section 107(6), CGST Act, 2017 — pre-deposit for the first appeal, referenced in computing the additional 10% for the second appeal.

Decision – In Favour of

Disposed of with directions; a procedural outcome that preserves the Assessee's right to appeal (subject to statutory pre-deposit) without any finding on the merits of the underlying demand.

Case Details

High Court of Orissa at Cuttack; W.P.(C) No.32635 of 2025; Coram: Chief Justice Harish Tandon & Justice Murahari Sri Raman; Order dated 27.11.2025.

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