2024 (10) TMI 277 - HC - GST

Seeking quashing the order of adjudication passed under Section 74 of the KGST / CGST Act, demand notice and order passed under Section 107 of the KGST / CGST Act - time limitation - condonation of delay - return of seized documents - recovery of input tax credit claimed by the petitioner - HELD THAT - A perusal of the impugned order would indicate that the appellate authority has dismissed the appeal on two grounds viz., firstly, the appeal is barred by limitation; secondly, the petitioner has not made the mandatory pre-deposit of 10%. The finding of respondent No. 2 that the appeal was barred by limitation was factually incorrect inasmuch as the appeal was filed on 29.12.2023 before expiry of 4 months (3 1) and consequently, the said finding regarding the appeal being barred by limitation by proceeding on a factually incorrect premise coupled with the fact that the affidavit for condonation of delay has not been considered by respondent No. 2 - appellate authority warranting interference by this court in the present petition. Insofar as the finding recorded by respondent No. 2 as regards non-payment of mandatory pre-deposit of 10% is concerned, the same would also have to be reconsidered by the respondent in accordance with law. The order dated 31.08.2023 passed under Section 74 of the KGST / CGST passed by the Assistant Commissioner of Commercial Taxes (Audit)-4, Shivamoga for the assessment year 2018-19 is set aside - matter is remitted back for re-consideration of the appeal on merits as well as non payment of deposit of 10% and in accordance with law - petition allowed.

Summary

Issues:
Petitioner seeking writs of certiorari to quash orders of adjudication and demand notice, mandamus to direct condonation of delay and return of seized documents, recovery of input tax credit, and any other necessary directions.

Analysis:
1. The petitioner sought various reliefs through the writ petition, including quashing of orders under the KGST/CGST Act for the assessment year 2018-19, condonation of delay, return of seized documents, and recovery of input tax credit. The petitioner filed an appeal within the prescribed period of limitation, but the appellate authority dismissed the appeal on grounds of limitation and non-payment of mandatory pre-deposit.

2. The court observed that the appeal was filed within the extendable period of four months as per Section 107 of the KGST/CGST Act, contrary to the appellate authority's finding of it being barred by limitation. The court noted that the appeal was filed before the expiry of the four-month period, and the affidavit for condonation of delay was not considered by the appellate authority, leading to a factual inaccuracy in the dismissal of the appeal.

3. Additionally, the appellate authority's decision regarding the non-payment of the mandatory pre-deposit of 10% was also questioned. The court emphasized the need for a reconsideration of this aspect by the respondent in compliance with the law. Consequently, the court allowed the petition, setting aside the order passed under Section 74 of the KGST/CGST Act for the assessment year 2018-19.

4. The court further directed the condonation of the delay in filing the appeal and remitted the matter back for a re-consideration of the appeal on its merits and the issue of non-payment of the mandatory deposit. The decision highlighted the necessity for a proper evaluation of the appeal in accordance with the legal provisions, ensuring a fair and just outcome for the petitioner.