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December 20, 2022

Technical default does not warrant dismissal of appeal without hearing the same on merit

by CA Shivam Jaiswal in GST, Legal Court Judgement

Technical default does not warrant dismissal of appeal without hearing the same on merit

Facts and issue of the case

The Petitioner, M/s. ATLAS PVC PIPES LIMITED, a Company incorporated under the provisions of the Companies Act, 1956, deals in supply of pipes. It claims to have participated in the proceeding under Section 74 of the OGST Act. Ultimately, the CT&GST Officer of Cuttack-I Central Circle-Opposite Party No.3 by order dated 20.01.2021 raised a demand to the tune of Rs.8,20,042/- (comprising tax of Rs.3,99,630/-, interest of Rs.53,212/- and penalty of Rs.3,67,200/-) pertaining to the tax periods from 1st April, 2019 to 31st March, 2020. Being aggrieved, on 21.04.2021 the Petitioner filed an appeal under Section 107 of the OGST Act. It is asserted by the Petitioner that in order to comply with the condition for filing of the appeal, although it deposited an amount of Rs.39,964/- being 10% of the tax in dispute in terms of sub-section (6) of Section 107, but could not submit the certified copy of the impugned order along with the appeal memo.

It is submitted by Mr. Singh, learned Advocate for the Petitioner that in addition to filing of the appeal by electronic mode, self-attested hardcopies of the documents including copy of the impugned order as made available to it in the GST web portal were furnished to the Appellate Authority-Opposite Party No.2. Nonetheless, the Petitioner received notice dated 13.05.2022 vide ARN/Appeal Case No. AD210421003076Y (Annexure-3 series), wherein it was indicated that the tax payer-Appellant was required to submit the certified copies within seven days of filing of the appeal. However, the Appellate Authority directed the Petitioner to submit the certified copy of the said document on or before 21.05.2022. The petitioner applied for and obtained a certified copy of the required document on 21st May, 2022. Since the office of the Opposite Party No. 2 was closed on May, 2022, being Sunday, the step could only be taken on 23rd May, 2022 to comply with the terms of notice dated 13th May, 2022. However, the department refused to accept the same, stating that he had already passed the order of rejection of appeal and uploaded the same in the GST portal on 23rd May, 2022.

Observation of court

 It is submitted by learned counsel that hyper-technical approach of the Appellate Authority rendered the Petitioner remediless inasmuch as there is no scope for approaching the Appellate Tribunal under Section 112 in view of the fact that as yet said Tribunal has not been constituted.

Learned counsel for Petitioner to buttress his argument placed reliance on the decision of this Court vide Order dated 07.06.2021 rendered in the case of Shree Jagannath Traders Vrs. Commissioner of State Tax, Odisha, Cuttack (W.P.(C) No.15061 of 2021). He further submitted that instead of showing pedantic approach, the Appellate Authority ought to have been pragmatic by taking into consideration the COVID-19 pandemic situation that persisted during the relevant period. Shree Udyog vs. Commissioner of State Tax, (W.P.(C) No.14887 of 2021), wherein in identical circumstances the Court had held that mere delay in enclosing a certified copy of the order appealed against along with the appeal should not come in the way of the petitioner’s appeal for being considered on merits by the Appellate Authority.

The Court further referred to the order of Hon’ble Supreme Court in the case of In Re: Cognizance For Extension of Limitation being Miscellaneous Application No. 21 of 2022 and observed that even after rectifying the defect pointed out by the department, the same fell within 90 days period granted by the Hon’ble Supreme Court in the order dated 10th January, 2022. The Court held that the appeal was rejected without giving any further notice of proceedings to the petitioner, thereby causing a violation of natural justice. The Court further held that Rule 108(3) has not prescribed for condonation of delay in the event where the petitioner would fail to submit a certified copy of the order impugned in the appeal, nor is there any provision restricting the application of section 5 of the Limitation Act, 1963, in the context of the supply of certified copy within seven days and that the requirement to furnish a certified copy of the impugned order within seven days of the filing of an appeal is provided as a procedural requirement.

Conclusion

After hearing to the both parties the Court held that since the petitioner has enclosed the copy of the impugned order as made available to it in the GST portal while filing the Memo of Appeal, non-submission of a certified copy is to be treated as a mere technical defect and on the altar of default in compliance of such a procedural requirement, the merit of the matter in appeal should not have been sacrificed, and set aside the said impugned order restoring back the appeal to be decided on the merit.

Full Case Law given below

High Court Of Orissa: Cuttack

W.P.(C) No. 14163 of 2022

M/S. Atlas PVC Pipes Limited Vs  State Of Odisha & Others

Date of Hearing and Judgment: 29.06.2022

orissa-hc-424424

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