2020 (9) TMI 427 - HC - GST

Period of limitation for filing an appeal - Refund of IGST - violation of section 107 of the CGST Act read with rule 108 of the CGST Rules - whether the appellate authority was justified in rejecting the appeal on the ground of limitation or not? - HELD THAT - The appeal is required to be filed in electronic mode only and if any other mode is to be prescribed then the same is required to be notified by way of a notification. There is nothing on record to show that any notification has been issued for manual filing of an appeal. In such circumstances, though the physical copy of the adjudication order was handed over to the petitioner, the time period to file appeal would start only when the order is uploaded on the GST portal. Without the order being uploaded, the petitioner could not file the appeal and therefore, the contention raised on behalf of the respondents that the uploading of the order and filing of the appeal are two different processes, is not tenable in law. Moreover, filing of the appeal and uploading of the order are intertwined activities. The order is required to be uploaded online so that the appeal can be filed electronically as per the mandate of the provisions of the Act and the Rules. However, there is no provision or procedure to file the appeal manually - In such circumstances, there was no failure on part of the petitioner to file the appeal within the prescribed period of limitation as the period of limitation did not start till the order passed by the adjudicating authority was uploaded on the GST portal. The impugned order passed by the appellate authority is required to be quashed and set aside by condoning the delay in filing of the appeal manually by the petitioner in absence of availability of the order passed by the adjudicating authority on the GST portal - Petition allowed.

Issues Involved:
1. Whether the appellate authority was justified in rejecting the appeal on the ground of limitation.
2. Whether the appeal could be filed manually due to non-availability of the electronic order.
3. The impact of technical and procedural issues on the filing of the appeal.

Detailed Analysis:

1. Justification of Rejection on the Ground of Limitation:

The petitioner filed an appeal under Articles 226 and 227 of the Constitution of India, challenging the order dated 01.05.2019 passed by the respondent no.3, which rejected the appeal on the ground of being beyond the limitation period. The petitioner contended that the limitation period prescribed under section 107 of the CGST Act would start only from the date of communication of the order in electronic form. The court noted that the appeal is to be filed electronically as per the CGST Act and CGST Rules, and the limitation period would start only when the order is uploaded on the GST portal. The court found that there was no failure on part of the petitioner to file the appeal within the prescribed period of limitation as the period of limitation did not start till the order was uploaded on the GST portal.

2. Manual Filing of Appeal Due to Non-Availability of Electronic Order:

The petitioner argued that they could not file the appeal electronically because the adjudicating authority's order was not uploaded on the GST portal. Despite this, the petitioner filed a manual copy of the appeal on 27th February, 2019. The court observed that the appeal is required to be filed in electronic mode only, and there was no notification issued for manual filing of an appeal. The court held that without the order being uploaded, the petitioner could not file the appeal electronically, and therefore, the manual filing was justified. The court emphasized that the petitioner should not be penalized for the lack of clarity in the provisions when the new law is enacted.

3. Impact of Technical and Procedural Issues on Filing of the Appeal:

The petitioner faced several technical issues and procedural hurdles in filing the appeal. The adjudicating authority did not upload the order on the GST portal, and the GST portal did not allow the filing of a refund application for the same month twice. The petitioner approached various authorities and lodged grievances on the GST portal, but the issues were not resolved. The court acknowledged these efforts and noted that the petitioner took all steps for proper filing of the appeal immediately after the issuance of the order. The court found that the appellate authority's rejection of the appeal on the ground of limitation was not justified, considering the technical and procedural issues faced by the petitioner.

Conclusion:

The court quashed and set aside the impugned order dated 1st May, 2019, passed by respondent no.3, condoned the delay in filing the appeal manually, and remanded the matter back to the appellate authority to decide the same afresh on merits after giving an adequate opportunity of hearing to the petitioner. The court emphasized that the petitioner should not be penalized for the lack of clarity in the provisions and the technical issues faced in filing the appeal.

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