Kerala HC: Writ Petitions Can’t Be Filed To Avoid Pre-Deposits under GST Act

The Kerala High Court has held that the taxpayer cannot file a writ petition to avoid the mandatory pre-deposit to be made at the appellate authority under the Central Goods and Services Tax (CGST) Act, 2017.

M/s Nico Tiles (petitioner) challenged a series of monthly assessment orders issued under section 62 of the CGST Act, 2017, before the High Court. The petitioner contended that the department issued assessment orders even after cancelling GST registrations.

Hon’ble Justice Bechu Kurian Thomas observed the below points:

  1. The order date of cancellation of GST was 19.03.2021
  2. Also, the department issued assessment orders before the above order date.
  3. The petitioner had already appealed to the appellate authority.
  4. The liability to make the pre-deposit falls on the appeal filing date, i.e., 11.03.2020.
  5. The petitioner approached High Court to avoid paying a 10% mandatory pre-deposit based on subsequent events.

Considering the above points, the Court said that:

  1. Once the petitioner undertakes the remedy of a statutory appeal under the GST Act, they cannot turn around and approach the High Court to avoid paying the mandatory pre-deposits.
  2. The said appeal ought to be pursued as contemplated by law. 
  3. The petitioner can use the subsequent events to avail of the appropriate benefits.
  4. Also, the appeal should be considered on merits but not to avoid the mandatory pre-deposits under the GST Act.
  5. If the Court permits this writ petition, the statute’s provisions will be redundant.
  6. They can not invoke the remedy of Article 226 of the Constitution of India in this case, not being an extraordinary case.

For any clarifications/feedback on the topic, please contact the writer at dvsr.anjaneyulu@cleartax.in

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