2024 (6) TMI 549 - HC - GST

Maintainability of appeal - appeal filed by the petitioner was dismissed on the ground of delay of 152 days in filing the Appeal - HELD THAT - It has been categorically held that the appellate authority under the GST Act has power under law to condone the delay beyond 120 days. In the present case, it is noted that the order in original was dated 08.02.2022 and the Appeal was filed on 21.07.2022. Hence after the deducting the statutory period of 90 days in filing the Appeal, there was a delay of 53 days. Hence the finding of the Appellate Authority to the extent that there was a delay of 152 days in filing the Appeal was erroneous. Hence, in view of the settled position of law, the appellate authority ought to have condoned the delay in the statutory period while considering the petitioner s appeal. The matter is remanded back to the appellate authority for fresh consideration - Petition disposed off by way of remand.

Summary

Issues involved:
The petitioner challenged the order of demand and appellate order due to delay in filing the appeal.

Issue 1 - Delay in filing the appeal:
The petitioner filed a writ petition against the order of demand and appellate order due to delay in filing the appeal. The petitioner claimed to have submitted the required statement in GST TRAN-1 within the stipulated time and had availed the benefit of carrying forward the input tax credit claim. The respondent issued a show cause notice alleging short payment of tax. The adjudicating authority passed the original order, and the petitioner faced difficulties in filing the appeal online due to the absence of a notice of demand in GST DRC 07. The petitioner manually filed the appeal before the Appellate Authority, but it was dismissed on the grounds of delay, citing a delay of 152 days in filing the appeal. The Appellate Authority refused to condone the delay, referencing Section 107 of the Act.

Issue 2 - Condonation of delay:
The respondent argued that the appeal was filed after a delay of 152 days, which exceeded the statutory period of three months for filing an appeal under Section 107 of the CGST Act. The respondent contended that there was no provision for condoning a delay of 152 days and that the petitioner failed to provide a valid explanation for the delay.

Judgment:
The High Court examined the documents and referred to relevant judgments, establishing that the appellate authority has the power to condone delays beyond 120 days under the GST Act. The Court found that there was a miscalculation in the delay period, as the actual delay was 53 days instead of 152 days. Relying on the settled legal position, the Court held that the appellate authority should have condoned the delay and remanded the matter back for fresh consideration. Consequently, the Court allowed the writ petition, condoned the delay, set aside the appellate order, and remanded the case to the appellate authority for reconsideration.