Revision application u/s 108 of UPGST Act 2017 can not be declined on the ground that remedy of appeal is available
In a recent judgment, Allahabad High Court has held that sub section (2) of section 108 of CGST Act 2017 does not imply that first of all the applicant, who has filed the revision under Section 108, should file an appeal and only thereafter, a revision will lie against such an order passed in appeal.
ABCAUS Case Law Citation:
4389 (2025) (01) abcaus.in HC
In the instant case, the assessee had filed a writ petition challenging revisional order passed by the Revisional Authority under Section 108 of U.P. Goods and Services Tax Act, 2017 (Act, 2017).
The contention of the petitioner was that the revision had been dismissed firstly on merits and then as not maintainable. The submission was that the revision was maintainable in view of the language used in Section 108 of the Act, 2017.
The Petitioner relied upon Sub-section 2 of Section 108, especially, clause 1 thereof which says that Revisional Authority shall not exercise any power under sub-section (1), if—(a) the order has been subject to an appeal under section 107 or section 112 or section 117 or section 118; or (b) the period specified under sub-section (2) of section 107 has not yet expired or more than three years have expired after the passing of the decision or order sought to be revised; or (c) the order has already been taken for revision under this section at an earlier stage; or (d) the order has been passed in exercise of the powers under sub-section (1).
It was submitted that though remedy of appeal was available to the petitioner against an order passed under Section 73 of the Act, 2017 but a revision was also maintainable under Section 108 and the petitioner chose to file a revision. If the order impugned was taken as an order on merits, then, it was a cryptic order passed without due and proper application of mind to the facts and grounds raised in the revision. It was submitted that if impugned order was treated as an order dismissing the revision as not maintainable, then, the same was clearly against the provisions contained in Section 108 of the Act, 2017.
The Hon’ble High Court noted that the Revisional Authority had observed that the impugned order prima facie being not erroneous, against the interest of revenue or illegal not maintainable for revision. The Revisional Authority further observed that under section 107 of UPGST/CGST Act, impugned orders are appealable as first remedy, therefore the revision application is not maintainable under GST Act and Rules.
The Hon’ble High Court opined that if the revision was not maintainable on the ground that there was a provision of appeal, then, the Revisional Authority should not have discussed any other aspect of the matter, however, if he entered into merits of the matter in the sense as to whether the parameters and prerequisites for exercise of revisional powers under Section 108 were existing or not, then, he could not have observed that the writ petition is not maintainable. Therefore, the order was not clear.
The Hon’ble High Court observed that Sub-section 2 of Section 108 of the Act, 2017 says that – “The Revisional Authority shall not exercise any power under sub-section (1), if—(a) the order has been subject to an appeal under section 107 or section 112 or section 117 or section 118.” The words -“the order has been subject to an appeal under Section 107” means that against such an order an appeal has been filed. No way these words can be understood as implying that first of all the applicant, who has filed the revision under Section 108, should file an appeal and only thereafter, a revision will lie against such an order passed in appeal.
The Hon’ble High Court opined that the impugned order passed by the Revisional Authority in either eventuality was not maintainable. If it was taken as a decision on merits it does not consider the facts of the case and the pleas raised in the revision. If it is to be taken as an order dismissing the revision as not maintainable, then, it is against the provisions of Section 108.
Accordingly, the revisional order was quashed.
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