2023 (1) TMI 440 - HC - GST

Violation of principles of natural justice - rejection of application of the petitioner for setting aside the ex-parte order - HELD THAT - It is an accepted fact to both the parties that by order dated 24.02.2022, first appeal filed by petitioner was rejected ex-parte . The Division Bench of this Court on two earlier occasions held that where there is no provision under the Act for filing recall application, the Court exercising power under Article 226 of Constitution could intervene in the matter and direct the authorities to consider the recall application and pass appropriate order. This Court finds that the first appellate authority was not justified in rejecting the application for recalling the ex-parte order, and thus, the order dated 22.09.2022 passed on the application rejecting the recall of the ex-parte order is hereby set aside - The matter is remitted back to the first appellate authority providing an opportunity to the petitioner to appear before the first appellate authority on 25.01.2023 - Petition allowed by way of remand.

Summary

Issues:
Challenging ex-parte order dated 24.02.2022 and order dated 22.09.2022 rejecting application for setting aside ex-parte order under CGST Act.

Analysis:
The writ petition challenged the ex-parte order dated 24.02.2022 and the subsequent order dated 22.09.2022, which rejected the application for setting aside the ex-parte order under the Central Goods and Sales Tax Act, 2017 (CGST Act). The petitioner's counsel argued that due to the father-in-law's illness, they could not appear before the first appellate authority, resulting in the dismissal of the appeal ex-parte. The absence of a constituted Tribunal and the lack of provisions for a recall application under the CGST Act led to the filing of the present writ petition.

Legal Precedents:
Reference was made to the Division Bench judgments of the High Court in cases such as M/s. M.P. Poddar & Company vs. Additional Judge (Revisions) Sales Tax Gorakhpur and Shyam Behari Tewari vs. Goods Tax Officer, Allahabad, emphasizing the intervention of the Court under Article 226 of the Constitution when there is no provision for a recall application under the Act.

Court's Decision:
After considering the arguments from both sides and reviewing the material on record, the Court found that the first appellate authority was unjustified in rejecting the application to recall the ex-parte order. The Court cited previous judgments where it was held that in the absence of a provision for a recall application, the Court could intervene and direct the authorities to consider such applications. Consequently, the order dated 22.09.2022 rejecting the recall of the ex-parte order was set aside.

Remittance and Instructions:
The matter was remitted back to the first appellate authority, granting the petitioner an opportunity to appear before them on 25.01.2023. The Court instructed that the petitioner or their counsel must be present on the specified date, and the first appellate authority should make a fresh decision without being influenced by the earlier order of 22.09.2022. As a result of these findings, the writ petition was disposed of by the Court.