Facts of the Case

This batch of over 245 writ petitions was filed before the Orissa High Court by a large group of taxpayers, including M/s Pravat Kumar Choudhury and numerous other individuals and firms, challenging orders of the Joint Commissioner of State Tax (Appeal), CT & GST, Cuttack, and connected first appellate authorities. In each case, the petitioners' first appeals against orders passed under Section 73 or Section 74 of the OGST/CGST Act had been rejected by the Appellate Authority solely on the ground that they were filed beyond the limitation period prescribed under Section 107(1) read with Section 107(4) of the Act. The petitioners contended that since the Second Appellate Tribunal under Section 112 of the Act had not yet been constituted in Odisha at the relevant time, they were left without any effective alternative remedy to challenge the time-barred rejection of their appeals, and were compelled to invoke the writ jurisdiction of the High Court under Articles 226 and 227 of the Constitution. Given the common question of law running through all these matters, the Court took them up together and disposed of them by a single common order dated 6 November 2023.

Issues Involved

  1. Whether the rejection of the petitioners' first appeals solely on the ground of delay under Section 107 of the CGST/OGST Act could be sustained.
  2. Whether the subsequent CBIC Notification No. 53/2023-Central Tax dated 2 November 2023, providing a special one-time procedure for filing appeals against Section 73/74 orders, applied to and benefited the petitioners.
  3. What relief was warranted for petitioners who, pursuant to interim orders or suo motu, had already deposited the entire disputed tax amount.

Petitioner's Arguments

  • The first appellate orders rejecting their appeals as time-barred were passed strictly applying the limitation prescribed in Section 107(1) read with Section 107(4), leaving no discretion to condone further delay.
  • In the absence of a functioning GST Appellate Tribunal under Section 112, the petitioners had no alternative statutory remedy against the time-barred rejection, justifying invocation of writ jurisdiction.
  • The intervening CBIC Notification No. 53/2023-Central Tax specifically carved out a class of taxable persons whose appeals were rejected solely on limitation grounds and prescribed a special procedure and cut-off date (31 January 2024) for filing fresh appeals, which squarely covered the petitioners' cases.

Respondent's Arguments

  • Standing Counsel for the CT & GST Department, along with counsel for CGST, Central Excise, Customs and the Union of India, did not seriously contest the applicability of the Notification once it was placed before the Court, given that it was issued by the Central Board of Indirect Taxes and Customs specifically to address the class of cases represented by the petitioners.

Court Order / Findings

  • The Division Bench noted that Notification No. 53/2023-Central Tax, issued during the pendency of these writ petitions, notified a special procedure for taxable persons who could not file appeals under Section 107 within time against orders passed under Section 73 or 74, or whose appeals were rejected solely on the ground of delay.
  • Under the Notification, such persons could file an appeal in FORM GST APL-01 on or before 31 January 2024, subject to payment of the admitted tax/interest/penalty amount and a mandatory pre-deposit of 12.5% of the disputed tax (subject to a cap of Rs. 25 crore), of which at least 20% had to be paid by debiting the Electronic Cash Ledger.
  • In view of the Notification, the Court set aside the impugned appellate orders in all the connected writ petitions and remanded the matters to the respective Appellate Authorities to be decided afresh on merits in accordance with law.
  • Where petitioners had already deposited the entire disputed tax amount pursuant to interim orders of the Court or suo motu, that fact was directed to be taken into account while deciding the appeals on merits, with any consequential refund made subject to the outcome of the appeal.

Important Clarification

  • The Court did not adjudicate the merits of the underlying tax demands; it only restored the petitioners' right of appeal by giving effect to the benefit of the CBIC's one-time amnesty-style Notification for condoning appeals rejected purely on limitation grounds.
  • The relief is available only to the class of persons and cases described in Notification No. 53/2023-Central Tax, and appeals filed under it remain subject to the pre-deposit conditions and the bar on refund of any excess amount already paid, pending disposal of the appeal.

Sections Involved

  • Section 107 of the Central Goods and Services Tax Act, 2017 — prescribes the limitation period for filing a first appeal against an order of the proper officer.
  • Section 112 of the Central Goods and Services Tax Act, 2017 — provides for a Second Appeal to the GST Appellate Tribunal, non-constitution of which left petitioners without an alternate remedy.
  • Section 73/74 of the Central Goods and Services Tax Act, 2017 — provisions under which the original demand orders impugned in the appeals were passed.
  • Section 148 of the Central Goods and Services Tax Act, 2017 — the enabling provision under which Notification No. 53/2023-Central Tax was issued to prescribe the special appeal procedure.

Decision – In Favour of

Petitioner. The impugned appellate orders rejecting the appeals as time-barred were set aside and all matters remanded to the Appellate Authority for fresh consideration on merits, in view of the CBIC's special amnesty Notification No. 53/2023-Central Tax.

Case Details

  • Court: High Court of Orissa at Cuttack
  • Case No.: W.P.(C) No. 6684 of 2023 and Batch of 245 connected Writ Petitions
  • Coram: Acting Chief Justice Dr. B.R. Sarangi and Mr. Justice Murahari Sri Raman
  • Date of Order: 06.11.2023

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