2023 (9) TMI 954 - HC - GST

Non-filing of Appeal before the Appellate Commissioner under Section 107 of the GST Act - failure to respond to the impugned order as well as notice - mis-match between the GSTR 1 and GSTR 3B - difference in ITC between GSTR 3B and GSTR 2A - HELD THAT - The petitioner has not filed a Statutory Appeal before the Appellate Commissioner under Section 107 of the GST Act and in view of the decision of the Hon'ble Supreme Court in Assistant Commissioner (CT) LTU, Kakinada and others Vs. Glaxo Smith Kline Consumer Health Care Limited 2020 (5) TMI 149 - SUPREME COURT . The petitioner has now filed this writ petition on 21.08.2023 with a delay of 58 days. Although the Hon'ble Supreme Court in Glaxo Smith Kline Consumer Health Care Limited has declared that orders cannot be challenged under Article 226 of the Constitution of India beyond the statutory period of limitation for filing appeal, Court is inclined to dispose this writ petition. Considering the above, the delay in filing the appeal is condoned. The petitioner is directed to file a Statutory Appeal within a period of 30 days from the date of receipt of a copy of this order. The Appellate Commissioner shall number the appeal and dispose the same on merits in its turn. The petitioner shall pre-deposit the amount that is required to be pre-deposited in terms of Section 107 of the GST Act, 2017 - Petition disposed off.

Summary

Issues involved: Challenge to Assessment order, Delay in filing appeal, Condonation of delay.

Challenge to Assessment order: The petitioner challenged the Assessment order dated 23.02.2023, which was based on discrepancies between GSTR 1, GSTR 3B, and GSTR 2A. The petitioner failed to respond to the notice issued in GST DRC 01 on 19.12.2022, leading to the passing of the impugned order.

Delay in filing appeal: The period for filing an appeal expired on 22.05.2023, with a grace period until 22.06.2023. The petitioner did not file a Statutory Appeal before the Appellate Commissioner under Section 107 of the GST Act within the statutory timeline. The writ petition was filed on 21.08.2023, with a delay of 58 days.

Condonation of delay: The petitioner provided a reasonable explanation for the delay in filing the appeal. The business was in decline, key staff had left, and new employees did not regularly check the GST portal for notices. The petitioner only became aware of the demand against them upon manual receipt of a recovery notice. The delay in filing the appeal was condoned, and the petitioner was directed to file a Statutory Appeal within 30 days.

Decision: The Court disposed of the writ petition, directing the petitioner to pre-deposit the required amount under Section 107 of the GST Act before the appeal is heard by the Appellate Commissioner. The Appellate Commissioner was instructed to hear the appeal on its merits in due course. No costs were awarded, and connected writ miscellaneous petitions were closed.