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TMI Blog2024 (10) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... deserves to be disposed of by setting aside the impugned order and remitting the matter back to respondent No. 1 for reconsideration of the matter afresh, in accordance with law. In so far as the dismissal of the appeal before respondent No. 2 - Appellate Authority, it is well settled that if an appeal is dismissed on the ground of delay as barred by limitation, is not an appeal in the eye of law and there would not be any merger of the original order into the order of the Appellate Authority so as to prevent this Court from exercising its jurisdiction under Articles 226 and 227 of the Constitution of India. Merely because respondent No. 2-Appellate Authority dismissed the appeal filed by the petitioner on the ground of limitation, since th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 107 of the K.G.S.T Act, which was dismissed by respondent No. 2-Appellate Authority on the ground that the same was barred by limitation, aggrieved by which the petitioner is before this Court by way of the present petition. 4. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the petitioner submits that the discrepancies between the between the GSTR-3B return and GSTR-2A return was due to bona fide reasons, sufficient cause and unavoidable circumstances and in the light of the Circular dated 27.12.2022 at Annexure-G, the procedure prescribed therein was to be followed and the same having not been done, the impugned order deserves to be set aside and the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 dated 02.05.2023 passed by the respondent, copy of which is produced at Annexure-A. 2. It is the case of the petitioner that there were certain discrepancies between the ITC claimed as per GSTR-3B and GSTR-2A and noticing such discrepancies, the Authority has adjudicated and directed excess claim of ITC to be reversed. 3. It is the case of the petitioner that they were not given sufficient opportunity to explain the discrepancies. However, it is submitted that irrespective of the stand taken by the assessee, in light of the Circular No. 183/15/2022-GST dated 27.12.2022 issued by the Central Board of Indirect Taxes and Customs, GST Policy Wing, wherever there is discrepancy in GSTR-3B and GSTR-2A, procedure is prescribed and in terms of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncial year 2017-18 and 2018-19. If that were to be so, the adjudicating authority ought to have taken note of the Circular irrespective of whether the petitioner had raised such contention. 7. Accordingly, this Court is of the prima facie view that the Circular is applicable to the present facts and on such ground, the adjudication order is set aside. In so far as the contention of counsel for revenue that the applicability of the circular may also depend on the facts of the case, the said aspect is left open to be decided upon remand. The order of sending the matter back to the authority is being passed also keeping in mind the request of the petitioner to be given one more opportunity to put forth their case before the Authority. 8. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce there is no adjudication on merits and the appeal has been summarily dismissed only on the ground of limitation, the said order of dismissal of the appeal on 23.04.2024 as barred by limitation cannot come in the way of this Court exercising its jurisdiction under Articles 226 and 227 of the Constitution of India and as such, this contention of the respondent cannot be accepted. It is needless to state that the present order is passed in the peculiar/special facts and circumstances obtaining the in the instant case and the present order shall not be treated as a precedent nor shall have any precedential value for any other purpose, whatsoever. 10. In the result, I pass the following: ORDER i. The Writ Petition is hereby allowed. ii. The i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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