2022 (12) TMI 853 - HC - GST

Attachment of Bank Account of petitioner - appeal filed within time limitation or not - ex-parte assessment order - power to condone the delay - HELD THAT - The appellate authority concerned has the power to condone the delay in presenting the appeal if it had done beyond the period of three months or six months as the case may be and allowed the further period of one month. In the instant case the period was of 05 months and 22 days in presenting the appeal. This Court in Aggarwal Dyeing and Printing Works v. State of Gujarat 2022 (4) TMI 864 - GUJARAT HIGH COURT considered the question of cancellation of registration on account of nonspeaking order which the officer concerned had passed the Court while directing that the department ought to have incorporated specific details to contents of a show cause notice as in prudent person would fail to respond to a show cause notice bereft of details the Court also having an occasion to consider the issue of limitation to certain extent. It question of delay of more than 02 years the writ applicant had preferred the appeal before the appellate authority by submitting the FORM GST APL-01 under Section 107 of the Act 2017 read with Rule 108(1) of the Rules framed there under. The Court examined the entire scheme of Act and held that where specific forms have been prescribed at each stage right form registration cancellation and revocation of cancellation of registration the same are to be strictly adhered to. At the same time it is equally important that the Proper Officer empowered under the said Act adheres to the principles of natural justice. The right of appeal beyond the period of 30 days and the issue of limitation while dealing with Section 107 of GST Act is a larger issue which needs to be addressed. Noticing particularly the period of Pandemic and the order of the Apex Court in this relation in a given case to be applied to each matter in our opinion the appellate authority could have taken into consideration this entire period of Pandemic to condone the delay as the date of knowledge. So far as the case of the petitioner is concerned the date of knowledge is 6.9.2022 and the bank attachment had been made on 6.9.2022 and he thereafter had approached the authority concerned. If his date of knowledge is taken into consideration the delay deserves to be condoned. It is apt to know the period of limitation to question the decision of the authority concerned was long over when for the first time the entire aspect had come to the knowledge of the present petitioner on 6.9.2022. It was simply not feasible to prefer the appeal against the order of the respondent authority asked on 15.7.2021 - Petition allowed.

Summary

Issues:
Challenge to order dated 28.9.2022 by Deputy State Tax Commissioner under GST Act; Delay in appealing; Condonation of delay; Compliance with procedural requirements; Violation of principles of natural justice.

Analysis:
1. The petition challenged the order dated 28.9.2022 by the Deputy State Tax Commissioner under the GST Act, seeking various reliefs, including a writ of Mandamus to quash the order, condonation of delay in appealing, and a stay on the implementation of the order.

2. The petitioner's return was scrutinized under Section 61 of the GST Act, leading to a demand notice of Rs. 72,92,765. The petitioner claimed unawareness of the proceedings and delay in responding to notices, resulting in an ex-parte assessment and subsequent appeal rejection due to being filed beyond the limitation period.

3. The Court noted the power of the appellate authority to condone delay in presenting appeals under the Act, allowing a further period of one month if sufficient cause is shown. The petitioner's delay of 5 months and 22 days was considered, citing relevant legal provisions.

4. Referring to a previous case, the Court emphasized adherence to procedural forms and principles of natural justice in tax matters. It highlighted the importance of fair hearing opportunities in appeal processes, citing relevant legal precedents.

5. Considering the impact of the COVID-19 pandemic on follow-up actions and awareness, the Court acknowledged the petitioner's circumstances of being unaware of the proceedings during the pandemic. It stressed the need for leniency in such cases and the importance of considering exceptional circumstances.

6. The Court ultimately allowed the petition, quashing the order dated 28.9.2022, and restoring the appeal for a fresh hearing on merits by the First Appellate authority. The decision was based on the petitioner's genuine reasons for delay and the need to address the issue of limitation in light of extraordinary circumstances.

7. The judgment highlighted the broader issue of addressing delays in appeals under the GST Act, especially in exceptional situations like the pandemic. It underscored the importance of balancing procedural requirements with considerations of fairness and justice in tax matters.