Recommendations of the 52nd GST Council can be considered for the computing Time Limit for filing an Appeal

[CA Bimal Jain]

The Hon’ble Gujarat High Court in the case of M/S. M GROUP VERSUS ASSISTANT COMMISSIONER OF STATE TAX - 2023 (10) TMI 1332 - GUJARAT HIGH COURT disposed of the writ petition and held that the Revenue Department can take into consideration the recommendation of 52nd GST Council Meeting i.e. the time period for filing appeals will be allowed in cases where appeals are filed against the order passed on or before, March 31, 2023, up to January 31, 2024, while deciding the application for condonation for the delay. 

Facts:

M/s. M Group (“the Petitioner”) is a partnership firm engaged in the business of supplying manpower services for the installation of Fiber optics etc. The Petitioner received a notice dated July 17, 2021 (“the Notice”) issued by the Revenue Department (“the Respondent”) under Section 61 of the Central Goods and Services Tax Act, 2017 (“the CGST Act”) for Financial Year 2018-2019. The Notice was issued to the Petitioner on the ground that the Petitioner ought to have provided the reason for the discrepancy in ITC. The Petitioner in response to the Notice filed reply dated September 17, 2021, provides an explanation along with documentary evidence in support of ITC claimed in GSTR-3B.

The Petitioner was issued a Show Cause Notice dated December 03, 2021 (“the SCN”) by the Revenue Department (“the Respondent”), under Section 61 of the CGST Act, interalia, stating that the Petitioner has claimed excess ITC to the extent of Rs.46,85,584/-, thereby asking the Petitioner to show cause as to why an order against it be passed. Thereafter, the assessment order dated April 06, 2022 (“the Impugned Order”) was passed against the Petitioner.

Aggrieved by the Impugned Order, the Petitioner filed a writ petition before the Hon’ble Gujarat High Court on the ground that no date for personal hearing was granted to the Petitioner. The Petitioner could not respond to the SCN as one of the persons was trying to secure Anticipatory Bail. The Petitioner further contended that, no opportunity was granted to the Petitioner to satisfy the Respondent as to why the Impugned Order passed was bad. Therefore, the Impugned Order passed in violation of Natural Justice.

The Petitioner thereafter, filed a rejoinder placing reliance upon the 52nd GST Council Meeting.

Issue:

Whether the recommendation of the 52nd GST Council Meeting pertaining to the time period for appeal can be considered while deciding the application for condonation for delay?

Held:

The Hon’ble Gujarat High Court in M/S. M GROUP VERSUS ASSISTANT COMMISSIONER OF STATE TAX - 2023 (10) TMI 1332 - GUJARAT HIGH COURT held as under:

• Noted that, the Petitioner has the option to file the appeal along with an application for condonation of delay explaining the circumstances which prevented the Petitioner from filing the appeal with the Respondent within the stipulated time period.
• Further Noted that, the 52nd GST Council Meeting to facilitate the measures of trade, recommended that, the time period for filing appeals under Section 107 of the CGST Act, will be allowed in cases where appeals are filed against an order passed on or before, March 31, 2023 up to January 31, 2024. 
• Opined that, the Respondent shall take into consideration the facts and circumstances stated by the Petitioner, in the application for condonation of delay which otherwise can be decided in accordance with law.
• Held that, the Respondent has the option to take into consideration the facts raised in the writ petition and observation made in the order and recommendations of the 52nd GST Council Meeting while considering the application for condonation of delay. Hence, the writ petition is disposed of.

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