2021 (6) TMI 412 - HC - GST

Maintainability of appeal before the appellate authority - time limitation - dismissal of appeal on the ground that appeal was not presented within the time - HELD THAT - Considering that the explanation offered by the petitioner is a plausible and not an unreasonable one, especially in these Covid times, and further considering that a downloaded copy thereof was in fact submitted along with the appeal which was otherwise filed within time, this Court is of the view that the mere delay in enclosing a certified copy of order appealed against along with the appeal should not come in the way of the Petitioner s appeal for being considered on merits by the Appellate Authority. This is a case of substantial compliance and the interests of justice ought not to be constrained by a hyper technical view of the requirement that a certified copy of the order appealed against should be submitted within one week of the filing of the appeal. The impugned order dated 10th March, 2021 of the Appellate Authority rejecting the appeal on the ground of delay, is hereby set aside. The appeal is now restored to the file of the Additional Commissioner of State Tax (Appeal), Balasore and is directed to be listed there for directions on 5th July, 2021 at 11 am.

Summary

Issues:
Determining whether the Appellate Authority was justified in dismissing the appeal for not being presented within the prescribed time under the OGST Act, 2017.

Analysis:
The key issue in this case was whether the Appellate Authority was correct in dismissing the appeal due to a delay in submitting a certified copy of the order appealed against. The facts were not in dispute, with the Adjudicating Authority passing the order on 18th August, 2020, and the last date for filing the appeal being 17th November, 2020. The Petitioner filed the appeal on 13th November, 2020, but the certified copy was submitted on 9th March, 2021, more than three months later. The Appellate Authority dismissed the appeal for being out of time. The relevant rules required the appeal to be accompanied by a certified copy within seven days of filing, failing which the date of filing would be affected.

The court examined Section 107(1) and Section 107(4) of the OGST Act, 2017, which allowed appeals within three months from the date of the order, with provision for further extension under certain conditions. The Petitioner filed the appeal within the initial three months but failed to submit the certified copy within seven days. The explanation provided was that the lawyer was in self-quarantine due to Covid-19 exposure, causing the delay. The court acknowledged the challenges faced during the pandemic in obtaining certified copies and emphasized the need for a liberal approach in such cases.

Considering the circumstances, the court held that the delay in submitting the certified copy should not impede the appeal from being considered on merits. The court emphasized substantial compliance over hyper-technical requirements, especially during the Covid-19 pandemic when court functions were limited. The court set aside the Appellate Authority's order and directed the appeal to be restored for consideration on merits. The court also advised the Appellate Authority to adopt a liberal approach in similar cases, allowing for the acceptance of ordinary downloaded copies in the absence of certified copies, given the ongoing restrictions due to the pandemic.

In conclusion, the court disposed of the writ petition by overturning the Appellate Authority's decision, emphasizing the need for a pragmatic and just approach in dealing with procedural delays caused by exceptional circumstances like the Covid-19 pandemic.