2020 (12) TMI 682 - HC - GST

Maintainability of appeal - appeal rejected on the ground that the appeal is filed beyond even the condonable period holding that the copy of the best Judgment order is served on the petitioner s registered e-mail - HELD THAT - The provisions of Section 107 of the Act is categorical that a person aggrieved by any decision or order under the Act may prefer an appeal to the prescribed authority within three months from the date on which the said decision or order is communicated to such person with a further condonable period of thirty days. It would therefore be necessary for the Appellate Authority, while dismissing an appeal on the ground that it is filed beyond the period of limitation prescribed and the further condonable period, to decide on the limitation considering the circumstances relied upon by the parties to assert a particular date as the date of communication. In the present case, the Department asserts the date of communication as 09.07.2019 where as the petitioner asserts as 7.11.2019. The impugned order does not indicate that the Appellate Authority has considered the controversy in this regard. The Appellate Authority, given the Scheme of the Act prescribing definite timelines for preferring an appeal and the lapse of right of appeal thereafter, would have to consider the circumstances asserted. It would be needless to observe that the Appellate Authority while considering the question of the date of communication as contemplated under Section 107 of the Act would also have to decide on the merits of the case. Petition disposed off.

Summary

Issues:
Challenge to best judgment order under Section 62 of CGST Act, 2017 and dismissal of appeal under Section 107 of the Act due to delay in filing.

Analysis:
The petitioner contested the rejection of their appeal under Section 107 of the Act, arguing that the appeal was dismissed on the basis of being filed beyond the condonable period. They disputed the claim that the copy of the best judgment order was served on their registered e-mail, stating they only became aware of the order after being informed by their Bankers. The petitioner emphasized that the Appellate Authority could not rely solely on the assertion of service via e-mail without concrete evidence. The petitioner highlighted the importance of establishing proper service under Section 169 of the Act for deeming provisions to apply.

The Court noted the provisions of Section 107 of the Act, which allow for an appeal within a specified timeframe from the date of communication of the decision or order, with an additional condonable period. It stressed the necessity for the Appellate Authority to consider the circumstances presented by both parties to determine the date of communication. In this case, conflicting dates were asserted by the Department and the petitioner, requiring a thorough examination by the Appellate Authority. The Court underscored the significance of adhering to the timelines prescribed by the Act for filing appeals and the subsequent lapse of the right of appeal.

The judgment highlighted the failure of the Appellate Authority to address the controversy surrounding the date of communication effectively. It directed that the impugned order be set aside, and the matter be reconsidered by the Appellate Authority in light of the observations made. The petitioner was instructed to appear before the Appellate Authority on a specified date without further notice. The Court emphasized the importance of the Appellate Authority considering both the date of communication and the merits of the case while adjudicating on appeals under Section 107 of the Act.