FACTS & SUBJECT MATTER: 
(1) The petitioner contends that the ingredients of Section 74 of the U.P.GST Act, 2017 are not made out from the show cause notice as well as orders passed by the revenue authorities as prerequisites of Section 74 of the U.P.GST Act are not satisfied. 
(2) The petitioner has assailed the order passed by the first appellate authority under the Uttar Pradesh Goods and Services Tax Act. The second appeal lies before the appellate tribunal under Section 112 of the Act. The appellate tribunal has not been made functional till date though it is informed that the notification has been made in that regard. The right of second appeal which is vested in the petitioner by the statute is being denied on account

CASE LAW: M/S Shree Agrawal Enterprises Vs State Of U.P. And 2 Others (WRIT TAX No. - 1379 of 2023 dated 04-12-2023)

ISSUE : Whether recovery can be done due to Right of second appeal which is vested in assessee by statute was being denied on account of failure of appropriate Government to constitute Tribunal?

HELD: The Hon’ble Allahabad High Court held as under:
(1) The grant of interim orders in the aforesaid manner made in the said orders passed by this Court balances the interests of revenue as well as the rights of the assessees. However, it needs to be clarified that it is always open to the Court to grant interim orders which are at variance with the aforesaid orders in peculiar facts and circumstances of a particular case while exercising writ jurisdiction in the interests of justice.
(2) In the wake of the preceding discussion, I am persuaded by the view taken by the learned single Judges of this Court in M/S Kent Cables (supra), M/S Tulsi Steels (supra) and M/S Nandan Sales Corporation (supra) in preference to the requirement to deposit 50% of the disputed tax liability.
(3) The application for interim relief is finally disposed of with the following direction:
A. The petitioner shall deposit 20% of the disputed tax liability in addition to the earlier deposit before the assessing authority (which is 10% of the disputed tax amount). Subject to the aforesaid deposit, the recovery proceedings of the balance amount shall remain stayed till the decision of this writ petition.
Summary Note:
Right of second appeal which is vested in assessee by statute was being denied on account of failure of appropriate Government to constitute Tribunal.  The Inconsistency arose among various interim orders passed by High Court in different cases as regards amount of pre-deposit conditions and some interim orders contemplated deposit of 30 per cent of tax amount out of which 10 per cent deposited before first appellate authority is liable to be adjusted ; while some other interim orders contemplated deposit of 50 per cent of tax amount.  In the present case it is HELD that Assessee cannot be faulted for what is essentially a failure of Government.  The Statute contemplates deposit of 10 per cent plus 20 per cent of disputed tax liability before first and second appellate authorities respectively.  By imposing a demand of 50 per cent in instant matters, assessees would be penalized for no fault of theirs (Government).  Hence, petitioner should deposit 20 per cent of disputed tax liability in addition to earlier deposit of 10 per cent of disputed tax amount before assessing authority - Subject to aforesaid deposit, recovery proceedings of balance amount would remain stayed till decision of instant writ petition. (Section 112, read with section 74, of CGST Act, 2017/ UPGST Act, 2017)