Appeal Allowed with Liberty to Approach Tribunal – Recovery Deferred on Pre-deposit

Case Title: Joji Mathai Cherian v. State Tax Officer & Anr.
Court: High Court of Kerala at Ernakulam
Petition No.: WP(C) No. 6629 of 2025
Date of Judgment: 21.02.2025
Category of Dispute: Appeal remedy – Recovery – Pre-deposit
Relevant Sections: Section 73, Section 112(1) & 112(8)(b) of CGST/SGST Act, 2017

Facts of the Case

1. The petitioner, a registered taxpayer under the GST Act, challenged an order of determination under Section 73 dated 27.10.2023 and the subsequent appellate order dated 19.06.2024 before the High Court since the Appellate Tribunal under Section 112(1) was not yet constituted (Para 1).

2. The petitioner sought relief against recovery proceedings initiated through a demand notice dated 12.03.2024 arising from the impugned orders (Para 1).

Question in Consideration

• Whether, in the absence of a constituted GST Appellate Tribunal, the petitioner can be permitted to defer recovery and be granted liberty to file an appeal once the Tribunal becomes functional? (Para 2).

Observation of the Court

1. The Court noted the continuing non-constitution of the Appellate Tribunal, which prejudiced the petitioner’s statutory right to appeal (Para 2).

2. It was observed that to balance interests, liberty could be granted to file an appeal before the Tribunal once constituted, subject to compliance with the pre-deposit condition under Section 112(8)(b) (Para 2).

Judgment of the Court

1. The writ petition was disposed of granting liberty to the petitioner to prefer an appeal before the Tribunal within 30 days of its constitution (Para 3).

2. The Court directed that if the petitioner deposits 10% of the disputed tax as per Section 112(8)(b) within 30 days, recovery proceedings based on Exhibit-P3 and Exhibit-P5 shall remain in abeyance until disposal of the appeal (Para 3).

3. The benefit of this order would not be available if the petitioner fails to comply with either the timeline or deposit requirement (Para 3).

Between Fine Lines

• The Tribunal under GST is still not constituted, causing hardship to taxpayers.

• High Courts continue to provide interim remedies until the Tribunal is functional.

• In this case, liberty to appeal later was given, protecting the taxpayer’s right.

• Pre-deposit of 10% under Section 112(8)(b) is a mandatory safeguard.

• Recovery is stayed conditionally, ensuring balance between Revenue and taxpayer.

Summary of Referred Cases

No specific case laws were referred in this judgment.

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