2020 (12) TMI 683 - HC - GST

Maintainability of appeal - time limitation - petitioner s appeal rejected on the ground that it is belated by four months and therefore beyond the maximum time permitted under Section 107 of the Act - HELD THAT - On perusal of Annexure-E, it is seen that the Appellate Authority, the third respondent, has not considered the specific assertions of the petitioner that the petitioner was not aware of the order dated 10.12.2018 until his banker informed him and immediately thereafter i.e., on 5.2.2019 the petitioner has deposited a part of the demand. If 05.02.2019 could be considered the date of communication, the appeal would be in time. These circumstances in the considered opinion of this Court had to receive the third respondent s attention, and even mentioning 10.12.2018 as the date of communication in the appeal format had to be considered in the facts and circumstances. This Court is of the considered view that Annexure-E which is rendered without considering these circumstances cannot stand the scrutiny in law especially given the fact that the Appellate Authority s order results in denial of the right of appeal under the Act. Petition allowed in part.

Summary

Issues:
Challenge to assessment order under Central Goods and Services Tax Act, 2017; Appeal dismissed as belated due to delay in filing; Dispute over date of communication of order; Allegations of miscarriage of justice.

Analysis:
The petitioner challenged an assessment order under the Central Goods and Services Tax Act, 2017, along with the subsequent dismissal of their appeal as belated by the Appellate Authority. The petitioner contended that they were not served with the physical copy of the order until a later date, which affected the timeline for filing the appeal. The petitioner argued that they only became aware of the order when their banker notified them about a garnishee notice, and they promptly paid a part of the demand in response. The petitioner claimed that the date of communication of the order should be considered as the date when they were actually informed, either on 28.05.2019 or 5.2.2019, making the appeal timely filed.

The Appellate Authority rejected the appeal citing the petitioner's admission in the appeal memorandum that they were informed of the order on the same day. However, the High Court observed that the Appellate Authority failed to consider the petitioner's specific assertions regarding their lack of awareness of the order until later and the subsequent actions taken. The Court noted that if the date of communication is taken as 5.2.2019, the appeal would be within the permissible time limit. The Court opined that the failure to consider these circumstances resulted in a denial of the right of appeal under the Act, leading to a miscarriage of justice.

In light of these findings, the High Court partially allowed the writ petition. The impugned order dismissing the appeal was set aside, and the appeal was restored to the Appellate Authority for reconsideration. The petitioner was granted the liberty to raise all grounds they deemed fit. The Court directed the petitioner to appear before the Appellate Authority on a specified date without further notice, ensuring a fair opportunity to present their case.