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2022 (7) TMI 130 - HC - GSTMaintainability of appeal - failure to submit certified copy of the order - extension of period of time limitation - compliance of the rules of natural justice or not - HELD THAT - If present case is considered in the light of order in IN RE COGNIZANCE FOR EXTENSION OF LIMITATION 2022 (1) TMI 385 - SC ORDER of the Hon ble Apex Court, the petitioner is entitled to the benefit of exclusion of limitation of 7 days as stipulated in Rule 108(3) of the OGST Rules inasmuch as the certified copy of the Order dated 20.01.2021 being obtained on 21.05.2022 and offered to the Appellate Authority on 23.05.2022 for consideration in connection with the defect pointed out vide notice dated 13.05.2022, the same fell well within the 90 days period granted by the Hon ble Supreme Court in the IN RE COGNIZANCE FOR EXTENSION OF LIMITATION 2022 (1) TMI 385 - SC ORDER . Investigating further into the instant matter, this Court finds that Rule 108(3) has not prescribed for condonation of delay in the event where the Petitioner would fail to submit certified copy of the order impugned in the appeal nor is there any provision restricting application of Section 5 of the Limitation Act, 1963, in the context of supply of certified copy within period stipulated in sub-rule (3) ibid - The requirement to furnish certified copy of the impugned order within seven days of filing of appeal is provided as a procedural requirement. It is apt to say that the Appellate Authority has not exercised its power in proper perspective and the Petitioner cannot be said to be indolent, rather he it has pursued its matter diligently - Petition allowed.
Issues Involved:
1. Propriety of the Order dated 23.05.2022 rejecting the appeal for non-submission of certified copy. 2. Compliance with procedural requirements under Section 107 of OGST Act and Rule 108 of OGST Rules. 3. Impact of COVID-19 pandemic on procedural compliance and limitation periods. 4. Applicability of Section 5 of the Limitation Act, 1963 in the context of OGST procedural requirements. Issue-wise Detailed Analysis: 1. Propriety of the Order dated 23.05.2022: The petitioner challenged the rejection of their appeal by the Joint Commissioner of CT&GST, Cuttack-I Central Circle, on the grounds of non-submission of a certified copy of the impugned order within the stipulated period. The petitioner had filed the appeal on 21.04.2021 and deposited 10% of the disputed tax amount but failed to submit the certified copy of the order dated 20.01.2021. The Appellate Authority issued a notice on 13.05.2022, requiring submission of the certified copy within seven days. The petitioner obtained the certified copy on 21.05.2022 and attempted to submit it on 23.05.2022, but the appeal was rejected as the order had already been passed and uploaded on the GST portal. 2. Compliance with Procedural Requirements: The petitioner argued that the Appellate Authority's hyper-technical approach rendered them remediless, as the Appellate Tribunal under Section 112 had not been constituted. The petitioner relied on the decision in Shree Jagannath Traders v. Commissioner of State Tax, Odisha, where the Court held that substantial compliance should be considered, especially during COVID-19 times. The Court noted that the petitioner had enclosed a copy of the impugned order available on the GST portal with the appeal memo, and the delay in submitting the certified copy should not have led to rejection of the appeal. 3. Impact of COVID-19 Pandemic on Procedural Compliance: The Court acknowledged the challenges posed by the COVID-19 pandemic, including restricted functioning of courts and tribunals. It referred to various Supreme Court orders extending limitation periods due to the pandemic, highlighting that a liberal approach should be adopted in such times. The Court emphasized that the procedural requirement of submitting a certified copy within seven days should not override the merits of the case, especially when the petitioner had made substantial efforts to comply. 4. Applicability of Section 5 of the Limitation Act, 1963: The Court examined whether the procedural requirement under Rule 108(3) of the OGST Rules excluded the applicability of Section 5 of the Limitation Act, 1963. It noted that Rule 108(3) did not expressly exclude the application of Section 5, and the procedural requirement should not lead to dismissal of the appeal on technical grounds. The Court cited the decision in Superintending Engineer Dehar Power House Circle Bhakra Beas Management Board v. Excise & Taxation Officer, where it was held that in the absence of specific exclusion, Section 5 of the Limitation Act applies. Conclusion: The Court set aside the impugned order dated 23.05.2022 and restored the appeal to the file of the Joint Commissioner of State Tax (Appeal), directing the petitioner to appear and submit the certified copy of the order dated 20.01.2021. The Appellate Authority was instructed to decide the appeal on merits, considering the procedural compliance in light of the COVID-19 pandemic and the principles of natural justice. The writ petition was allowed, emphasizing a liberal approach towards procedural compliance during the pandemic.
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