2021 (12) TMI 376 - HC - GST

Delay in filing of appeal - Period of limitation - Validity of action on the part of the respondent no.5 in refusing to accept and entertain the appeal preferred by the petitioner against the impugned assessment order - Section 62 of the Maharashtra Goods and Services Tax Act, 2017 limitation prescribed by sub-section (1) of Section 107 of the Act - HELD THAT - It is well settled that the Court cannot add or subtract the words to a statute or read something into it which is not there. This is precisely what learned counsel for the petitioner wants us to do. The submission of learned counsel for the petitioner that except for communication of the impugned assessment order on the GSTN portal, all other communications are to be disregarded for the purpose of sub-section (1) of Section 107 of the said Act, is fallacious and too far fetched. Rule 108 which is reproduced herein before. Sub-rule (1) of Rule 108 provides that the appeal under sub-section (1) of Section 107 shall be filed in Form GST APL-01, along with the relevant documents, either electronically or as notified by the Commissioner. Sub-rule (3) provides that a certified copy of the decision or order appealed against shall be submitted within seven days of filing the appeal under sub-rule (1) - proviso to sub-rule (3) of Rule 108 stipulates the consequence of filing the certified copy within seven days and also the consequence of filing the certified copy after seven days from the date of filing of appeal. In the present case, having regard to the express provisions of sub-Section (1) and (4) of Section 107 of the said Act, we have no manner of doubt, that for the purpose of limitation, the date of communication of the impugned assessment order is to be regarded as April 20, 2019 viz the date on which the order was sent by email to the petitioner - the petitioner failed to avail of the remedy provided by the said Act for filing of an appeal within the period prescribed and therefore rightly not accepted and entertained by the appellate authority beyond the extended statutory limitation period of one month in terms of sub-section (4) of Section 107. Though the petitioner was in receipt of the impugned assessment order by email on April 20, 2019 itself, the petitioner applied for certified true copy of the order dated April 20, 2019 on November 5, 2019, only after the recovery proceedings were initiated against the petitioner by attaching the bank account on July 1, 2019. The petitioner has by such belated action lost the statutory remedy of appeal - the petitioner s challenge to the impugned assessment order is not entertained. It was incumbent upon the petitioner to file the appeal within the statutory period of limitation prescribed by sub-section (1) and sub-section (4) of Section 107 of the said Act, to be reckoned taking into consideration the date of communication of impugned assessment order as April 20, 2019, which the petitioner failed to do - Petition dismissed.

Summary

Issues Involved:
1. Refusal to accept and entertain the appeal against the assessment order.
2. Delay in filing GST returns and its impact on the assessment order.
3. Communication and service of the assessment order.
4. Calculation of the limitation period for filing an appeal.
5. Principles of natural justice and statutory remedies under the GST Act.
6. Jurisdiction of the High Court under Article 226 of the Constitution.

Detailed Analysis:

1. Refusal to Accept and Entertain the Appeal Against the Assessment Order:
The petitioner challenged the respondent's refusal to accept the appeal against the assessment order dated April 20, 2019, passed under Section 62 of the Maharashtra Goods and Services Tax Act, 2017. The appeal was initially filed manually on November 20, 2019, and later electronically on January 10, 2020. The respondent refused to accept the appeal due to a delay in filing.

2. Delay in Filing GST Returns and Its Impact on the Assessment Order:
The petitioner cited financial difficulties as the reason for the delay in filing GST returns for February 2019. Consequently, a notice was issued on March 26, 2019, and a summary assessment order was passed on April 20, 2019, fixing tax liability, interest, and penalty. The petitioner filed the GSTR-3B return on June 14, 2019, unaware of the assessment order.

3. Communication and Service of the Assessment Order:
The assessment order was not served physically nor uploaded on the GSTN portal initially. Instead, it was emailed to the General Manager of the petitioner company on April 20, 2019. The petitioner claimed ignorance of this email until their bank account was attached on July 1, 2019. They applied for a certified copy on November 5, 2019, and filed a physical appeal on November 20, 2019. The order was uploaded on the GSTN portal on January 8, 2020, and an online appeal was attempted on January 10, 2020.

4. Calculation of the Limitation Period for Filing an Appeal:
The court examined whether the limitation period for filing an appeal under Section 107(1) of the Act should commence from the date the order was uploaded on the GSTN portal or from the date it was emailed. According to Section 107(1), the appeal must be filed within three months from the date of communication of the order. The court held that the limitation period started from April 20, 2019, the date the order was emailed, not from the date it was uploaded on the portal.

5. Principles of Natural Justice and Statutory Remedies Under the GST Act:
The petitioner argued that the assessment order violated principles of natural justice as it was passed unilaterally without a hearing. They contended that the penalty was excessive and the refusal to entertain the appeal was unjustified. The court, however, emphasized that the statutory remedy of appeal must be availed within the prescribed period, and the right to appeal is regulated by the law in force.

6. Jurisdiction of the High Court Under Article 226 of the Constitution:
The petitioner sought to challenge the assessment order via a writ petition under Article 226, citing a breach of natural justice. The court referred to precedents, noting that statutory remedies must be exhausted before invoking writ jurisdiction. It held that the High Court could not entertain the writ petition as the petitioner failed to file the appeal within the statutory period.

Conclusion:
The court dismissed the writ petition, holding that the petitioner failed to file the appeal within the statutory limitation period prescribed by Section 107(1) and (4) of the Act. The date of communication of the order was April 20, 2019, and the petitioner did not avail the remedy within the prescribed time. The court emphasized the statutory command regarding limitation and the necessity to adhere to the prescribed legal remedies.