2021 (1) TMI 328 - HC - GST

Principles of Natural Justice - rejection on the ground that the appeal is filed beyond even the condonable period holding that the copy of the best Judgment order dated 10.05.2019 is served on the petitioner s registered e-mail on 10.05.2019 and in person on 14.05.2019 - 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 10/14.05.2019 and the petitioner asserts 7.11.2019 as the date of communication. The impugned order does not indicate that the appellate authority has considered the controversy in this regard. The appellate Authority has also not considered the circumstances relied upon by the petitioner to justify that the date of communication of the order as 07.11.2019. 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. The impugned order passed by the Joint Commissioner of Commercial Taxes Appeals 6, Bengaluru, is set aside - petition disposed off.

Summary

Issues:
Challenge to best judgment order under CGST Act, 2017 & dismissal of appeal under Section 107 of the Act based on service of order.

Analysis:
The petitioner contested the rejection of their appeal under Section 107 of the CGST Act, arguing that the appeal was dismissed on the grounds of being filed beyond the condonable period due to the alleged service of the order. The petitioner emphasized that the Appellate Authority could not conclusively establish service based solely on the assertion of the first respondent regarding the order being sent via email. The petitioner highlighted the necessity for the Department to prove that the notice was indeed sent to the registered email or uploaded on the web portal, especially when service is claimed to be through registered email or web portal upload.

The petitioner further argued that the physical copy of the order dated 10.05.2019 was not served on the Directors of the Company or its authorized representative, apart from a reference in Form GST APL - 02. The petitioner's counsel justified the petitioner's stance on the date of service of the order by referring to Annexures-B & C, which indicated the cancellation and subsequent revocation of registration without mentioning any outstanding dues from the best judgment assessment. This lack of mention of tax arrears led the petitioner to believe that there was no best judgment reassessment order.

On the other hand, the Additional Government Advocate contended that a physical copy of the order was served with a written acknowledgement on 14.05.2019, and thus, the appeal filing timeline should commence from that date. The petitioner rebutted this by pointing out that the service on a site supervisor named Nagarjuna mentioned in the acknowledgement could not be considered sufficient for imputing knowledge for limitation purposes.

The judgment highlighted the importance of adhering to the timelines prescribed under Section 107 of the Act for filing appeals and the need for the appellate authority to consider the circumstances presented by both parties regarding the date of communication of the order. It was noted that the impugned order did not address the controversy surrounding the date of communication and lacked consideration of the circumstances asserted by the petitioner. Therefore, the order dated 6.3.2020 was set aside, and the matter was remanded to the Appellate Authority for reconsideration based on the observations made in the judgment. The petitioner was directed to appear before the Appellate Authority without further notice on a specified date.

In conclusion, the judgment emphasized the significance of determining the date of communication for appeal filing purposes and the necessity for the Appellate Authority to consider all relevant circumstances while addressing such disputes, along with the merits of the case.