Statutory rights to appeal cannot be compromised due to governmental inaction, and consistency must be maintained in interim orders affecting pre-deposit requirements.

JUDGMENT

Ajay Bhanot, J.

Order in Interim Application

Heard Shri Saurabh Kesarwani, learned counsel and Shri Pankaj Kumar, learned counsel holding brief of Ms. Pragya Pandey, learned counsel for the petitioners, Shri N.C. Gupta, learned counsel for the respondent nos. 1 and 2 and learned Standing Counsel for the State.

2. The petitioners in all the connected petitions have assailed the orders passed by the first appellate authority under the Uttar Pradesh Goods and Services Tax Act as well as the Central Goods and Services Tax Act. The second appeal lies before the appellate tribunal under Section 112 of the respective Acts. 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 petitioners by the statute is being denied on account of the failure of the appropriate Government to constitute the tribunal. The executive inertia cannot become the cause of denial of a statutory right. In this context it would be apposite to recall the observations made by the Supreme Court in Supdt. of Taxes v. Onkarmal Nathmal Trust , (1976) 1 SCC 766 :

"17. The first contention on behalf of the State that it became impossible for the State to issue notice under Section 7(2) of the new Act within two years of the expiry of the period of return is unsound on principle and facts. The maxim lex non cogit ad impossibilia means that the law does not compel a man to do that which he cannot possibly perform. In the present appeals, the applications were moved in the High Court for stay of proceedings. The respondents challenged the validity of the Act, and, therefore, asked for an injunction restraining the State from taking proceedings under the Act. At no stage, did the State ask for variation or modification of the order of injunction. It is well known that if it is brought to the notice of a court that proceedings are likely to be barred by time by reason of any order of injunction or stay the court passes such suitable or appropriate orders as will protect the interest of the parties and will not prejudice either party. Even when certificate to appeal to this Court was granted on August 1, 1963, the State did not ask for any order for stay of operation of the judgment. That is quite often done. For the first time, on August 10, 1964 the State filed an application for stay of operation of the judgment of the High Court. The State did not take steps at the appropriate time. This Court on October 28, 1964 granted an interim order staying the operation of the High Court judgment. The interim order was made absolute on January 28, 1965 with certain conditions. The State cannot take advantage of its own wrong and lack of diligence. The State cannot contend that it was impossible to issue any notice within the period mentioned in Section 7(2) of the new Act. The State did not endeavour to obtain appropriate orders to surmount the difficulties by reason of the injunction against taking steps within the time contemplated in Section 7(2) of the new Act. The State is guilty of default. The State had remedies open to take steps by asking for modification of the order. The State had to assert the right that the State was entitled to demand taxes and the respondent was liable to pay the same. The State followed the policy of inactivity. Inactivity is not impossibility. The order of injunction is not