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2023 (8) TMI 1092 - HC - GSTMaintainability of appeal - appeal dismissed on the ground of limitation - HELD THAT - From the perusal of sections 107 (1) and 169 of the UP GST Act, it is evidently clear that the appeal against an order can be preferred within a period of three months from the date of communication. Section 169 (1)(a) of the UPGST Act provides that any decision, order, summons, notice or other communication shall be served by any one of the following methods, namely, by giving or tendering it directly or by a messenger including a courier to the addressee or the taxable person or to his manager or authorised representative or an advocate or a tax practitioner holding authority to appear in the proceedings on behalf of the taxable person. Therefore, it is evident that the order communicated on an Advocate will be deemed service upon the petitioner. It is admitted that the order was passed on 28.03.2018 and the said order was duly communicated to the Advocate of the petitioner, namely, Shri Anil Jain. Once an order has been communicated on 28.03.2018, the limitation for filing an appeal within a period of three months ends in the last week of June, 2018. On perusal of section 5 application of the petitioner filed in support of the appeal, not a single word has been whispered as to how and in what method the petitioner came to know about the said order on 26.06.2019 and as to why the application was moved on 26.06.2019 by another counsel, when the order dated 28.03.2018 was already communicated to the petitioner's Advocate, namely, Shri Anil Jain. Once the Advocate, namely, Shri Anil Jain, was representing the petitioner before the respondent Assistant Commissioner, State Tax, Mobile Squad, on which the order dated 28.03.2018 was served on the same day, i.e., on 28.03.2018, was not disputed at any stage and the only ground taken was that Shri Anil Jain, Advocate has not informed the petitioner about the order dated 28.03.2018. In view of these facts not being in dispute, the impugned order cannot be interfered with. Petition dismissed.
Issues involved:
The issues involved in the judgment are the constitution of GST Tribunal in the State of U.P. and the challenge against the order dismissing the appeal on the ground of limitation. Constitution of GST Tribunal: The petitioner challenged the order dated 23.02.2021 passed by the Additional Commissioner, Grade - 2 (Appeals - 4), Ghaziabad, which dismissed the appeal on the ground of limitation. The petitioner, a registered dealer in iron & steel, faced detention of goods due to the absence of e-way bill. The petitioner filed an appeal against the tax and penalty imposed, accompanied by a delay condonation application. The petitioner argued that the delay in filing the appeal was due to a mistake by the former counsel, who failed to communicate the original penalty order. The counsel further contended that the appeal was filed within the limitation period as per section 107 of the UP GST Act, which allows appeals within three months from the date of communication of the order. The petitioner emphasized that the order should have been served directly to the aggrieved party, not just the counsel. The petitioner sought condonation of delay based on the counsel's mistake as a reasonable cause. However, the respondent contended that the order was duly communicated to the counsel, triggering the limitation period. The respondent argued that service on the advocate is deemed as service on the petitioner, and the appeal was rightly rejected for being beyond the limitation period. After considering the arguments, the Court upheld the rejection of the appeal, stating that service on the advocate sufficed for communication to the petitioner. Dismissal of Appeal on Ground of Limitation: The Court analyzed the relevant provisions of sections 107(1) and 169 of the UP GST Act. Section 107 allows appeals within three months from the date of communication of the decision or order. Section 169(1)(a) specifies methods of service, including communication to the advocate representing the taxable person. The Court noted that the order was communicated to the petitioner's advocate on 28.03.2018, triggering the limitation period. The petitioner's argument of discovering the order on 26.06.2019 and filing the appeal promptly was scrutinized. It was observed that the petitioner failed to provide details on how they learned of the order in 2019. The Court highlighted the lack of communication or explanation regarding the delayed discovery of the order. As the petitioner's advocate was aware of the order and represented the petitioner, the Court dismissed the writ petition, finding no merit in the petitioner's contentions.
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