2023 (7) TMI 1098 - HC - GST

Maintainability of appeal (appeal challenging the order of determination of Tax) - appeal rejected due to non supply of certified copy of the order - dismissal for delay in filing the appeal, justified or not - HELD THAT - There is no dispute that the petitioner preferred the appeal on 28.06.2021. If the authority found some defect, the obligation casts on the appellate authority to intimate the appellant with regard to the defect in the appeal itself. But as it appears nothing has been placed on record nor any argument has been advanced by the Revenue Department with regard to intimation of any defect, but rejected the same after long lapse of around 11 months only on 17.05.2022. Even if that will also be taken into consideration, the action of the opposite parties is absolutely arbitrary, unreasonable and contrary to the provisions of law and in violation of the principle of natural justice, reason being, if the party files an appeal in ignorance of the position that he has to file the certified copies of the order and the filing of appeal is defective one, then the appellate authority has to intimate the applicant with regard to the defect in the appeal by giving him opportunity to rectify the defect, so that the appellant can remove the same within the time stipulated. If that would have been adhered to after grant of such opportunity, then certainly right accrues in favour of the appellate authority to reject the same since the Principle of Natural Justice has been complied with. Nothing has been placed on record to that extent and mechanically the same has been rejected showing non-supply of the certified copies, which this Court does not accept. The order passed by the appellate authority under Annexure-1 in rejecting the appeal preferred by the petitioner for non-supply of the certified copies, cannot sustain and the same is hereby set aside and the matter is remitted back to the appellate authority to entertain the same and pass order after allowing the petitioner to remove the defect as would be pointed out by the appellate authority - Petition allowed by way of remand.

Summary

Issues:
The petition seeks to quash Form GST APL-02 issued by one party and an order passed by another party under Section 63 of the OGST Act. The main contention is the rejection of the appeal due to non-supply of a certified copy of the order, without giving an opportunity of hearing to the petitioner.

Judgment Details:

Issue 1 - Rejection of Appeal:
The petitioner filed a writ petition to quash the Form GST APL-02 and an order under the OGST Act due to the rejection of their appeal on the grounds of non-supply of a certified copy of the order. The petitioner argued that the rejection was unjustified, as they were not informed of any defect in the appeal and were not given an opportunity to rectify it. The Court noted that the authorities should have intimated the petitioner about any defects in the appeal, allowing them a chance to comply. The rejection without proper communication or opportunity for rectification was deemed arbitrary, unreasonable, and a violation of natural justice principles.

Issue 2 - Compliance with Rules:
The Revenue Department contended that the rejection of the appeal was justified due to the non-filing of a certified copy, citing an amendment in the Odisha Goods and Service Tax Rules. However, the Court found that the rejection was not based on any error apparent on the face of the order. The Court emphasized the importance of following due process and providing an opportunity for rectification before rejecting an appeal. The authorities were directed to entertain the appeal, allow the petitioner to rectify any defects, and then decide on the matter.

Conclusion:
The Court set aside the order rejecting the appeal and remitted the matter back to the appellate authority for proper consideration. The judgment highlighted the importance of adhering to principles of natural justice and providing opportunities for rectification before rejecting appeals. The decision in a previous case was referenced to emphasize the need for procedural fairness in such matters. The writ petition was disposed of accordingly.