Brahmananda Panda vs Union Of India & Ors
2023 Latest Caselaw 9863 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK
                         W.P (C) No. 27136 of 2023


Brahmananda Panda                   .....                             Petitioner
                                               Ms. K. Roy Choudhury, Advocate

                                    Vs.
Union of India & Ors.               .....                        Opposite Parties
                                                          Mr. P.K. Parhi, DSGI
                                                                        (O.P.1)
                                               Mr. Sunil Mishra, SC, CT & GST
                                                                   Department

             CORAM:
                DR. JUSTICE B.R. SARANGI
                MR. JUSTICE MURAHARI SRI RAMAN

                                           ORDER

23.08.2023

Order No. This matter is taken up through hybrid mode.

2. Heard Ms. K. Roy. Choudhury, learned counsel appearing for the petitioner and Mr. Sunil Mishra, learned Standing Counsel appearing for the CT & GST Department.

3. The petitioner has filed this writ petition seeking direction to the opposite parties to determine the rate of GST @ 5% as per notification no.11/2017-CT (R) dated 28.06.2017 on payment of royalty to the Government of Odisha, if at all leviable for the stone quarry activity.

4. Ms. K. Roy Choudhury, learned counsel appearing for the petitioner contended that admittedly the appeal preferred by the petitioner was barred by limitation in terms of Section 107(4) of the Odisha Goods and Services Tax Act, 2017. If the petitioner pays the entire tax liability, as determined by levying tax under the OGST Act, 2017 @ 18% in respect of tax period prior to promulgation of Notification No.27/2018, dated 31.12.2018 in compliance of the order, it will cause difficulties to the petitioner and the amount deposited by the petitioner will be appropriated.

5. Mr. Sunil Mishra, learned Standing Counsel appearing for the CT & GST Organization contended that since the appeal preferred by the petitioner is barred by limitation, the writ petition cannot be entertained and, as such, in view of the judgments of the apex Court and other High Courts, the limit specified under the Statute cannot be extended by exercising power under Article 226 of the Constitution of India. The petitioner is, therefore, bound to pay the demand raised by the authority. It is further contended that if at all this Court entertains this writ petition, keeping in view the fact that the matter is likely to be filed before the second appellate Tribunal after its constitution, the petitioner has to pay the entire amount, but that will not serve the purpose by keeping the petition pending. Now the petitioner is making out a new case challenging the rate of tax exigible on royalty to be paid by the petitioner (whether it is 5% or 18%). This question cannot be considered at this stage because the first appeal has been rejected as barred by limitation. It is further contended that the question of rate of tax leviable on royalty @ 5% or 18% has not been raised before the Assessing Authority. Therefore, the petitioner is precluded from raising such question at this stage.

6. Learned counsel appearing for the petitioner seeks time to examine the matter.

7. Put up this matter next week.

(DR. B.R. SARANGI) JUDGE

Alok (M.S. RAMAN) JUDGE

Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 23-Aug-2023 18:22:43