9911796707
TMI Blog2024 (2) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of State Tax (Appeal), Central Zone-II, Odisha at Cuttack passed under Section 107 of the Odisha Goods and Services Tax Act/the Central Goods and Services Tax Act, 2017 (Collectively be called, "GST Act") rejecting the Appeal bearing No. AD 210223003708N filed on 15.02.2023, directed against assessment framed by Additional CT & GST Officer, Kenonjhar Circle, Jajpur exercising power under Section 63 vide Order dated 30.10.2021, the petitioner has invoked extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India beseeching following relief(s): "Under the aforesaid circumstances, it is prayed, therefore, that this Hon'ble Court may be graciously pleased to: (a) Admit the writ application; (b) Issue rule nisi calling upon the opposite party No. 9 as to why Notification dated 02.11.2023 vide Annexure-7 shall not be held to be discriminatory and in violation of Article 14 of the Constitution of India to the extent it permits only a class of persons to avail the benefit of the said amnesty scheme i.e. orders passed under Section 73 and Section 74 of the OGST/CGST Act, 2017 and in violation of natural justice, and therefore, unsustainable i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty Commissioner of State Tax, CT & GST Circle, Keonjhar for the self-same tax periods, i.e., 2019-20, treating the concern as registered person bearing GSTIN: 21ACDPD0572H2Z9, against which appeal being filed on 09.06.2023, provisional acknowledgment bearing No. AD 2106230013750 was generated and said appeal has been pending consideration. 2.3. As the matter stood thus, following Notification F. No. CBIC-20001/10/2023-GST [No. 53 of 20234 Central Tax], dated 02.11.2023 has been issued by the Ministry of Finance (Department of Revenue) (Central Board of Indirect Taxes and Customs): "S.O. No. 4767(E)- In exercise of the powers conferred by Section 148 of the Central Goods and Services Tax Act, 2017 (12 of 2017) (hereinafter referred to as the said Act), the Central Government, on the recommendations of the Council, hereby notifies taxable persons who could not file an appeal against the order passed by the proper officer on or before the 31st day of March, 2023 under Section 73 or 74 of the said Act (hereinafter referred to as the said order), within the time period specified in sub-section (1) of Section 107 read with sub-section (4) of Section 107 of the said Act, and the taxab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mark that "order number entered is already under appeal or appeal order has been passed. If error persists, please call GST helpdesk or log your issues on Grievance Redressal Portal for GST and quote error number APFOAS1009". 2.5. The petitioner on 05.12.2023 placed grievance appraising the opposite party No. 1 to condone the delay in view of aforesaid notification dated 02.11.2023 on the portal which was assigned with ticket number G-2023120511677783. The grievance cell acknowledging the said grievance sent an e-mail dated 05.12.2023 whereby it informed that the request is registered and the status is "OPEN" and the petitioner would soon be updated. The grievance cell further updated by e-mail dated 11.12.2023 that the petitioner has to file representation to the office of the Appellate Authority and the said authority would check the eligibility of the representation for the availing benefit under the benevolent notification and forward the case to GSTN through State Nodal Officer. Said e-mail also instructed the petitioner to approach the Appellate Authority. 2.6. The petitioner thereafter approached the Appellate Authority and the Joint Commissioner of CT & GST (Appeal), Jajp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) Issue writ of mandamus directing the Opp. Party No. 1 & 5 to restore/revive the appeal dismissed on the ground of delay in view of notification dated 02.11.2023 in the ends of justice." 3. In course of hearing, this Court made a query as to whether the learned counsel appearing for the petitioner will confine her arguments with regard to prayer No.(b) or prayer No.(d), and whether the opposite parties are properly impleaded or not. Learned counsel appearing for the petitioner stated that if the relief is granted today, she will confine her argument to prayer No.(d) and so far as prayer No.(b) is concerned, she sought time for further study. 4. On her request, put up this matter on Monday (29.01.2024)." 3.1. When the matter is taken up today (29.01.2024) for further hearing, Smt. Kajal Sahoo, learned Advocate very fairly stated that the petitioner does not wish to press prayer No.(b), but pressed into service the contentions so far as they related to prayer No.(d). 3.2. Smt. Kajal Sahoo, learned Advocate, made request for disposal of the writ petition at this stage, inasmuch as keeping the matter pending would enure to the benefit of none. 3.3. Sri Sunil Mishra, learned S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he portal. 4.3. However, the CT & GST Organisation has created temporary registration bearing No. 212100002050TMP vide Form GST REG-12 as prescribed under Rule 16(1) of the Odisha Goods and Services Tax Rules, 2017, on 01.07.2021. Referring to "effective date of registration/temporary ID" as reflected at Column No. 11 of said form, which shows "01.07.2021", Smt. Kajal Sahoo, learned Advocate urged that the Authority misdirected himself by taking up assessment under Section 63, as the Authority himself has treated the petitioner as unregistered person with effect from 01.07.2021. This is indicative of the fact that even prior to 01.07.2021 the petitioner has been registered person. 4.4. Placing reliance on Delhi Foot Wear Vrs. Sales Tax Officer, (2015) 77 VST 146 (Ori), wherein dicta laid down in Taylor Vrs. Taylor, (1876) 1 Ch.D. 426; Nazir Ahmed Vrs. King Emperor, AIR 1936 PC 253; Ram Phal Kundu Vrs. Kamal Sharma, (2004) 2 SCC 759; and Indian Banks9 Association Vrs. Devkala Consultancy Service, AIR 2004 SC 2615 = (2004) 11 SCC 1, Gujarat Urja Vikas Nigam Ltd. Vrs. Essar Power Ltd., (2008) 4 SCC 755 has been referred to Smt. Sahoo, learned Advocate submitted that when the statue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record it is transpired that the Appellate Authority has passed the following Order on 09.08.2023 while rejecting the appeal: "This is an appeal preferred by M/s. Aurpa Nanda Dhal, GSTIN-212100002050TMP (herein referred as the appellant) U/s 107 (1) of the OGST Act, 2017 against the demand order passed by the Additional CT & GST Officer, Keonjhar Circle, Jajpur (herein referred as LPO) vide Ref No-ZD2110210128941 dated 30.10.2021. On being aggrieved by the order, the appellant has preferred the present appeal in Form GST APL-01 on dated 15.02.2023. As per Section 107(1) of the CGST/OGST 2017 'Any person aggrieved by any decision order passed under this act by an adjudicating authority may appeal to such appellate authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person'. On verification of the appeal application, it is revealed that the appellant has filed appeal application with a delay of 380 days. As such the appellant was issued with show cause notice on dt. 25.05.2023 to explain why the appeal application shall not be rejected for such delay filing. But, the appellant failed to respond the said s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y tax, the proper officer may proceed to assess the tax liability of such taxable person to the best of his judgement for the relevant tax periods and issue an assessment order within a period of five years from the date specified under Section 44 for furnishing of the annual return for the financial year to which the tax not paid relates: Provided that no such assessment order shall be passed without giving the person an opportunity of being heard." 6.3. Glance at provisions contained in Section 63 would reveal that the Assessing Authority is vested with power to invoke jurisdiction under Section 63 inter alia in the event "taxable person fails to obtain registration even though liable to do so". Evidence available on record is silent about existence of such jurisdictional fact. 6.4. Expanding her argument, Smt. Kajal Sahoo, learned Advocate submitted that temporary registration bearing No. 2121000020SOTMP being allotted on 01.07.2021 by the CT & GST Organisation giving effective date of registration/temporary ID as "01.07.2021", was not within knowledge of the petitioner and he was unaware of the factum of assessment order being passed under Section 63 and demand raised there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as passed in exercise of power under Section 63 treating the petitioner to be unregistered person, notwithstanding that it was within his knowledge that the petitioner was a registered person, there is no whisper about the petitioner-taxable person failed to obtain registration even though liable to do so. 7.1. Bare reading of Section 63 makes it abundantly clear that in order to assume jurisdiction to assess a taxable person treating him to be unregistered either of the two following circumstances must exist: i. where a taxable person fails to obtain registration even though liable to do so; or ii. whose registration has been cancelled under sub-section (2) of Section 29 but who was liable to pay tax. 7.2. The very fact that on the date of issue of notice for assessment under Section 63 of the GST Act and also on the date of passing of the Assessment Order thereunder, the CT & GST Organisation including the Assessing Authority had the knowledge that the petitioner has been granted Registration Certificate assigned with GSTIN 21ACDPD0572H2Z9 being valid since 01.07.2017, i.e., the date of enforce of the GST Act. Therefore, this Court is of the firm belief that there is glar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is distinction between "jurisdictional fact" and "adjudicatory fact" which cannot be ignored. An "adjudicatory fact" is a "fact in issue" and can be determined by a Court, Tribunal or Authority on "merits", on the basis of evidence adduced by the parties. It is no doubt true that it is very difficult to distinguish "jurisdictional fact" and "fact in issue" or "adjudicatory fact". Nonetheless, the difference between the two cannot be overlooked." 7.5. Aforesaid dicta of the Hon'ble Supreme Court of India clarifies the position that where an adjudicatory process is involved on merits, then the only remedy open to an assessee is to go through the procedure provided under the enactment. Nonetheless, where there is absence of jurisdictional fact, the Authority cannot wrongly assume existence of jurisdictional fact and proceed to decide a matter and in such eventuality, the order can be questioned by a writ of certiorari. 7.6. By "jurisdiction" it is meant the extent of the power which is conferred upon the Court by its constitution to try a proceeding; its exercise cannot be enlarged because what the learned Judge calls an extraordinary situation "requires" the Court to exercise it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the Tribunal has to try. The Tribunal must itself decide as to the collateral fact when, at the inception of an inquiry by a Tribunal of limited jurisdiction, a challenge is made to its jurisdiction, the Tribunal has to make up its mind whether it will act or not, and for that purpose to arrive at some decision on whether it has jurisdiction or not. There may be Tribunals which, by virtue of legislation constituting them, have the power to determine finally the preliminary facts on which the further exercise of their jurisdiction depends; but, subject to that an inferior Tribunal cannot, by a wrong decision with regard to a collateral fact, give itself a jurisdiction which it would not otherwise possess. The characteristic attribute of a judicial act or decision is that it binds, whether it be right or wrong. An error of law or fact committed by a judicial or quasi-judicial body cannot, in general, be impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends. These principles govern not only the findings of inferior Courts stricto sensu but also the findings of administrative bodies which are held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings. Proceedings for assessment under a fiscal statute are not in the nature of judicial proceedings, like proceedings in a suit, inasmuch as the Assessing Officer does not adjudicate on a lis between an assessee and the State, and, therefore, the law on the issue laid down under the civil law may not stricto sensu apply to assessment proceedings. *** 18. Therefore, the law emerges that in case the authority is found to lack inherent/patent jurisdiction, the order becomes a nullity. However, in case there has been any illegality in following the procedure prescribed by law, the order remains merely illegal and would be curable. *** 24. Before parting with the case, we would like to point out that everyday we are facing the assessment orders, in respect of the TIN dealers, passed by the assessing authority, circle, though such assessment orders are in violation of the statutory provisions as can be passed only by assessing authority, range. Even if the dealer does not take any objection in this regard, it becomes the duty of the assessing authority himself to keep the jurisdictional issue in mind." 7.9. Central Potteries Ltd. Vrs. State of Maharashtra, (1962) 13 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eems the Assessing Authority has proceeded to conduct fishing and roving enquiry. In absence of tangible material on record regarding failure of the petitioner "to obtain registration even though liable to do so", such erroneous exercise of power under Section 63 goes to the root of the matter and warrants issue of writ of certiorari in view of ratio of Arun Kumar Vrs. Union of India, (2007) 1 SCC 732 and Carona Ltd. Vrs. Parvathy Swaminathan and Sons, (2007) 8 SCC 559. 8. Be that as it may, in the present matter, it fell for consideration whether the Appellate Authority could have condoned the delay in filing appeal, particularly when he has cited provision of sub-section (1) of Section 107 of the GST Act. The fact asserted by the petitioner is that it is only when the bank intimated regarding attachment of account for the purpose of recovery of demand raised in assessment framed under Section 63, the petitioner came to know about such demand raised as if he remained unregistered person. The petitioner immediately questioned such an action before this Court in W.P.(C) No. 27502 of 2022. The petitioner filed appeal pursuant to direction of this Court in said writ petition vide Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law." 9.3. Therefore, treating the exercise of power under Section 63 of the GST Act as erroneous on the part of the Assessing Authority it is but necessary to observe that the Appellate Authority is required now to decide the appeal on merits. 10. It needs to be mentioned that Section 63 of the GST Act is couched in the negative by use of the words "no such assessment order shall be passed without giving the person an opportunity of being heard". 10.1. The notice for hearing is, therefore, mandatory requirement to exercise power under Section 63 in order to comply with the principles of natural justice. It is reflected from the Order dated 30.10.2021 that the same was prepared on account of Temporary Registration Number, notwithstanding the fact that the petitioner has been registered since 01.07.2017. Therefore, it is submitted by Smt. Kajal Sahoo, learned Advocate that the Assessing Authority claiming to have issued notice "to explain the reasons for continuing to conduct busines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act or the rules made thereunder shall be served by any one of the following methods, namely:- (a) by giving or tendering it directly or by a messenger including a courier to the addressee or the taxable person or to his manager or authorised representative or an advocate or a tax practitioner holding authority to appear in the proceedings on behalf of the taxable person or to a person regularly employed by him in connection with the business, or to any adult member of family residing with the taxable person; or (b) by registered post or speed post or courier with acknowledgement due, to the person for whom it is intended or his authorised representative, if any, at his last known place of business or residence; or (c) by sending a communication to his e-mail address provided at the time of registration or as amended from time to time; or (d) by making it available on the common portal; or (e) by publication in a newspaper circulating in the locality in which the taxable person or the person to whom it is issued is last known to have resided, carried on business or personally worked for gain; or (f) if none of the modes aforesaid is practicable, by affixing it in some c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re resolved, the practice of sending physical copy through registered post or speed post or courier with acknowledgment may be dispensed with." 10.6. Section 27 of the General Clauses Act, 1897, deals with the meaning of 'service by post'. It states that: 'Where any (Central Act) or Regulation made after the commencement of this Act authorizes of requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression in used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post'. It is manifest from the mandate of section 282 of the Act read with section 27 of the General Clauses Act that these provisions deal with the service of notice and more particularly the service of notice by post. Section 27 provides that service by post shall be deemed to be effected by properly addressing, pre-paying and posting by registered post. It means that when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Authority that the petitioner has valid registration. Reading of provisions of Section 63 and Section 169 of the GST Act in juxtaposition, it is manifest that sending the communication or notice in Temporary Registration Number is not the requirement. 10.11. There being sufficient plausible reason ascribed by the petitioner for approaching the Appellate Authority by way of filing appeal under Section 107 and the Appellate Authority should not have been pedantic in his approach but to have shown pragmatic approach by taking into consideration the peculiar fact-situation. 10.12. The precept, as stated in Distributors (Baroda) P. Ltd. Vrs. Union of India, (1985) 155 ITR 120 (SC) = (1986) 1 SCC 43 , is apt to be quoted hereunder: "We have given our most anxious consideration to this question, particularly since one of us, namely, P.N. Bhagwati, J. was a party to the decision in Cloth Traders' case. But having regard to the various considerations to which we shall advert in detail when we examine the arguments advanced on behalf of the parties, we are compelled to reach the conclusion that Cloth Traders' case, (1979) 3 SCC 538 must be regarded as wrongly decided. The vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. It would suffice for our purpose to quote from the seven Judge Bench decision of this Court, the Hon'ble Supreme Court in Hari Vishnu Kamath Vrs. Ahmad Ishaque, (1955) 1 SCR 1104 = AIR 1955 SC 233. The four propositions laid down therein were summarized by the Constitution Bench in Custodian of Evacuee Property Vrs. Khan Saheb Abdul Shukoor, (1961) 3 SCR 855 = AIR 1961 SC 1087 as under: "The High Court was not justified in looking into the order of December 2, 1952 as an appellate court, though it would be justified in scrutinizing that order as if it was brought before it under Article 226 of the Constitution for issue of a writ of certiorari. The limit of the jurisdiction of the High Court in issuing writs of certiorari was considered by this court in Hari Vishnu Kamath Vrs. Ahmad Ishaque (1955) 1 SCR 1104; AIR 1955 SC 233 and the following four propositions were laid down- '(1) Certiorari will be issued for correcting errors of jurisdiction; (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
