2022 (11) TMI 1123 - HC - GST

Maintainability of petition - availability of alternative remedy of appeal - cancellation of registration of petitioner - crux of the grievance is non-communication of the order of cancellation of registration within the period of limitation prescribed for preferring an appeal whereby depriving the petitioner of availing the remedy of appeal - HELD THAT - In the present case, it is clear from the return that the respondents adhered to the provision of Section 169 of the GST Act as regards communication of the show cause notice as well as order of cancellation of registration and, therefore, no fault can be found with the Revenue - Pertinently, the return of respondents further reveals that the show cause notice in question was sent on the mobile bearing number as mentioned on the portal belonging to petitioner and e-mail address of erstwhile consultant. Therefore, it is clear as day light that the appeal preferred by petitioner u/S. 107 of GST Act was hopelessly time barred and since there is no further enabling provision in the hands of appellate authority to extend the period of limitation, this Court in its writ jurisdiction cannot tinker with the statutory provision u/S. 107 of GST Act, which does not bestow any discretionary power on the appellate authority to extend the period of limitation. Petition dismissed.

Summary

Issues Involved:
Challenge to dismissal of appeal under Section 107 of GST Act as time-barred due to non-communication of order of cancellation of registration within the prescribed period.

Analysis:

1. Dismissal of Appeal as Time-Barred:
- The petitioner filed a petition under Article 226 challenging the dismissal of their appeal under Section 107 of the GST Act as time-barred.
- The grievance was against the dismissal of the appeal by the Joint Commissioner-cum-Appellate Authority for State Goods and Service Tax, citing it as time-barred.
- The petitioner contended that the show cause notice and the order of cancellation were not communicated to them, depriving them of the opportunity to file an appeal within the limitation period.
- The core issue was the non-communication of the order of cancellation within the prescribed time, hindering the petitioner from availing the remedy of appeal.

2. Communication of Orders via Portal:
- The respondents argued that the show cause notice and the order of cancellation were uploaded on the portal as per Section 169(1)(D) of the GST Act.
- They maintained that since the orders were available on the portal, the petitioner could have downloaded them for filing an appeal.
- The Revenue emphasized that under Section 169, any communication under the GST Act should be served by making it available on the official portal.
- The respondents stated that the petitioner had access to the show cause notice and the cancellation order on the portal, shifting the blame to the petitioner for not utilizing the available information.

3. Comparison with Precedent:
- The petitioner cited a previous decision where an opportunity to appeal was granted when the order of cancellation was not directly communicated to the petitioner but to their counsel.
- However, the present case differed as the orders were communicated to the petitioner's mobile number and the email address of their consultant.
- The return of respondents highlighted that the show cause notice was sent to the petitioner's mobile number and the consultant's email address, making it evident that the appeal was time-barred.

4. Judicial Limitation on Discretion:
- The Court noted that the appeal under Section 107 of the GST Act was time-barred, and no provision allowed the appellate authority to extend the limitation period.
- As there was no discretionary power conferred on the appellate authority to extend the limitation period, the Court could not intervene in the statutory provision of Section 107 of the GST Act.
- Consequently, the Court upheld the impugned order of rejecting the appeal as time-barred, leading to the dismissal of the writ petition.

In conclusion, the High Court dismissed the writ petition challenging the dismissal of the appeal under Section 107 of the GST Act as time-barred due to the non-communication of the order of cancellation within the prescribed period. The Court emphasized the communication of orders via the portal, the lack of discretion to extend the limitation period, and the distinction from previous precedents where communication channels varied.