CBIC says won't object to a petitioner going to HC in absence of GSTAT

CBIC says it would like to withdraw earlier plea in matter relating to dispute over refund of a company

The Central Board of Indirect Taxes and Customs (CBIC) has told the Bombay High Court that it has no intention that a petitioner suffers hardship due to non-availability of GST appellate tribunal (GSTAT) by objecting to a remedy available at a High Court.

The board filed an affidavit in the court in this respect after a government lawyer earlier told the court that a writ petition should not be entertained to challenge the order passed by the commissioner (appeals) in view of the fact that the remedy of the tribunal is available under the Central Goods & Service Tax (GST) Act, 2017.

It should be noted that while provision of tribunal is there under the Act, it is yet to be constituted. The writ petition related to a dispute over refund of a company.

CBIC told the court that it would like to withdraw an earlier plea in this regard.

The plea relied on a Supreme Court decision which held that even though the tribunal is not constituted, writ petition should not be entertained in high court.

However, the counsel for the company pointed out that the decision of the Supreme Court related to a situation where the petitioner had directly approached the High Court.

Under the GST system, an appeal can be filed before the commissioner (appeals) against the order of an adjudicating authority.

The High Court said the CBIC counsel was unable to inform it what remedy is available for the petitioner.

The court observed that the counsel had sought to contend that though there is no tribunal, nor it can be committed when it will be set up in near future, the position that the petitioner is remediless, is appropriate.

"Therefore, it is necessary for us to know whether the Union of India has given such instructions to the advocate," the court wanted to know.

CBIC’s affidavit said that the counsel was not specifically directed by it to argue on the matter of alternative remedy. However, the counsel had only argued on the issue of alternative remedy only, it said.

The CBIC submitted that the court may decide the issue on merits.

Abhishek Jain, partner, indirect tax at KPMG in India, said taxpayers can gainfully rely on this order to take cases to a High Court where urgent remedy is required. However, on the other hand, such instances reiterate the pressing need of a functional GST Tribunal, he said.

GSTAT is yet to be formed despite GST being five and a half years old. The forthcoming meeting of the GST Council is likely to consider a report by a group of ministers on GSSTAT on Saturday.