2024 (2) TMI 1368 - HC - GST

Maintainability of appeal - time limitation - Since the Tribunal under Section 112 of the CGST Act, before whom an Appeal would lie against the said Order, has not been constituted, the Petitioner has filed the present Petition - HELD THAT - The contents of the letter dated 9th September 2022 clearly show that the Petitioner had not received the Order dated 31st March 2022 on 4th April 2022 or on any other date prior to 9th September 2022. By the said letter dated 9th September 2022, the Petitioner has clearly recorded that, despite the earlier Order dated 14th March 2022 of this Court directing the Respondents to decide the issue of cancellation of CGST registration of the Petitioner within four weeks from the date of appearance, and despite the Petitioner appearing on 22nd March 2022, even after a lapse of more than five months, the directions of this Court had not been obeyed and an Order had not been passed - the contents of this letter clearly show that the Petitioner had not received the said Order dated 31st March 2022 by e-mail on 4th April 2022, as contended by the Respondents. It is an admitted position that the Petitioner had filed the Appeal on 20th December 2022. Since, the Petitioner had filed the Appeal within a period of three months from the date of communication of the said Order on 20th September 2022, by virtue of the provisions of Section 107(1) of the CGST Act, the Appeal filed by the Petitioner is within limitation. The impugned Order dated 25th October 2023, which holds that the Appeal of the Petitioner is barred by limitation, will have to be set aside, and Respondent No. 2 will have to be directed to decide the Appeal of the Petitioner on merits - Petitioner s Appeal is restored.

Summary

Issues Involved:
1. Whether the Petitioner's Appeal was time-barred.
2. Whether Respondent No. 2 considered all relevant factors while deciding the issue of limitation.

Summary:

Issue 1: Whether the Petitioner's Appeal was time-barred.

The Petitioner challenged the Order dated 25th October 2023, which dismissed their Appeal as time-barred. The Petitioner argued that they received the Order dated 31st March 2022 only on 20th September 2022 and filed the Appeal on 20th December 2022, within the statutory period of three months as per Section 107 of the CGST Act. The Respondents contended that the Order was served via e-mail on 4th April 2022, making the Appeal filed on 20th December 2022 beyond the limitation period. The Court found that the Petitioner had not received the Order on 4th April 2022 and accepted the Petitioner's submission that they received it on 20th September 2022. Therefore, the Appeal filed on 20th December 2022 was within the limitation period.

Issue 2: Whether Respondent No. 2 considered all relevant factors while deciding the issue of limitation.

The Court observed that Respondent No. 2 failed to consider the Petitioner's letter dated 9th September 2022, which indicated that the Petitioner was unaware of the Order dated 31st March 2022 until 20th September 2022. The Court had previously directed Respondent No. 2 to consider all factors while deciding the limitation issue. However, Respondent No. 2 concluded that the Appeal was time-barred based on the alleged e-mail communication on 4th April 2022, without addressing the Petitioner's letter. The Court held that the contents of the letter clearly showed that the Petitioner had not received the Order before 9th September 2022.

Findings and Orders:

The Court set aside the Order dated 25th October 2023, restoring the Petitioner's Appeal to the file of the Additional Commissioner (Appeals) - (II) Mumbai, directing it to be decided on merits. The Additional Commissioner (Appeals) was instructed to dispose of the Appeal in accordance with the law, providing adequate opportunity for a hearing to the Petitioner, and to do so within eight weeks from the date a copy of the Order is presented. All contentions on merit were kept open, and no order as to costs was made.