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TMI Blog2024 (10) TMI 1296X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner and is also a proper officer in terms of Section 29(1) of the Act and hence the Appeal will lie against an order passed by such officer, i.e. Assistant Commissioner to the Commissioner. Since after the remand order, the writ petition was disposed of by the learned Single Judge on 18.08.2022, which has not been assailed and for a limited purposes the review application has been preferred whether an Appeal will lie before the Commissioner against an order passed by the Assistant Commissioner, therefore, the Review Application is being allowed, in part. The judgment and order passed by this Court on dated 20.06.2022 is reviewed and modified by holding that since the Commissioner has assigned the functions under the Act to the Assistant Commissioner and due to this assignment, the Assistant Commissioner being an officer under the Act is a proper officer in terms of Section 2(91) and also an adjudicating authority in terms of Section 2(4) of the Act and hence the Appeal will lie against the order passed by the Assistant Commissioner, before the Commissioner. - THE HON BLE CHIEF JUSTICE MS. RITU BAHRI AND THE HON BLE JUSTICE SRI RAKESH THAPLIYAL For the appellant: Mr. S.K. Posti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by either of the parties. 5. Subsequently, after the disposal of the writ petition by the learned Single Judge by judgment dated 18.08.2022, the present Review Application has been preferred on behalf of respondent Nos. 1 2 on 26.09.2022 along with the Delay Condonation Application (IA/2/2022), wherein the counter affidavit was called by this Court by order dated 21.10.2022, since no counter affidavit was filed, Mr. S.K. Posti, learned Senior Counsel was appointed as an Amicus Curiae to argue to the case pro bono by order dated 18.11.2022. 6. With the consent of the learned Amicus Curiae and the learned counsel for the review applicant, the delay of 63 days in preferring the Review Application is hereby condoned; accordingly, the Delay Condonation Application stands disposed of. 7. The main genesis of filing of the Review Application in the present case is that the office of the Commissioner, State Tax, Uttarakhand, in exercise of powers conferred under sub-Section (1) and sub-Section (3) of Section 5 read with clause (91) of Section 2 of the Uttarakhand Goods and Service Tax Act, 2017 (Act No. 06 of 2017) and the rules framed thereunder, passed an order on 30.06.2017 and at Sl. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf as to the legality or propriety of the said decision or order and may, by order, direct any officer subordinate to him to apply to the Appellate Authority within six months from the date of communication of the said decision or order for the determination of such points arising out of the said decision or order as may be specified by the Commissioner in his order. (3) Where, in pursuance of an order under sub- section (2), the authorised officer makes an application to the Appellate Authority, such application shall be dealt with by the Appellate Authority as if it were an appeal made against the decision or order of the adjudicating authority and such authorised officer were an appellant and the provisions of this Act relating to appeals shall apply to such application. (4) The Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or six months, as the case may be, allow it to be presented within a further period of one month. (5) Every appeal under this section shall be in such form and shall be verified in such manner as may be prescribed. (6) No appeal shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order and the order is passed within the time limit specified under section 73 or section 74. (12) The order of the Appellate Authority disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for such decision. (13) The Appellate Authority shall, where it is possible to do so, hear and decide every appeal within a period of one year from the date on which it is filed: Provided that where the issuance of order is stayed by an order of a court or Tribunal, the period of such stay shall be excluded in computing the period of one year. (14) On disposal of the appeal, the Appellate Authority shall communicate the order passed by it to the appellant, respondent and to the adjudicating authority. (15) A copy of the order passed by the Appellate Authority shall also be sent to the Commissioner or the authority designated by him in this behalf and the jurisdictional Commissioner of Central tax or an authority designated by him in this behalf. (16) Every order passed under this section shall, subject to the provisions of section 108 or section 113 or section 117 or section 118 be final and binding on the parties. 13. Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the definition of adjudicating authority provided in Himachal Pradesh Goods and Service Act, 2017, and as such, it is evident that the expression adjudicating authority does not include among other authority, the Commissioner. 18. The said conclusion was drawn by this Court by framing question that whether the Assistant Commissioner of GST, whose order is challenged in this case, is an adjudicating authority, or not? And this question was dealt by this Court in the light of the judgment rendered by the Hon ble Supreme Court in the case of Radha Krishan Industries Vs. State of Himachal Pradesh and others, (2021) 6 Supreme Court Cases 771 wherein the power to levy a provisional attachment of the bank accounts by the Commissioner of GST was questioned. 19. This matter came up before the Hon ble Supreme Court against the judgment rendered by the Hon ble High Court of Himachal Pradesh, whereby the writ petition was dismissed and the Hon ble Supreme Court took into consideration the provisions of Section 107 of the Himachal Pradesh Goods and Service Tax Act, 2017 (H.P. Act), as well as to Section 2(4) of the H.P. Act, which defines the adjudicating authority and gave a finding. 20. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the above definition, it is evident that the expression adjudicating authority does not include among other authorities, the Commissioner. In this case, the order has not been passed by the Commissioner, but it has been passed by the Assistant Commissioner of GST. 13) Section 3 of the Uttarakhand Act provides for the appointment of the class of officers which includes the Principal Commissioner of State Tax, Special Commissioner of State Tax, Commissioner of State Tax, and also the Assistant Commissioner of State Tax. 14) Section 5 provides for powers of officers. Section 5 of the Uttarakhand Act reads as under: 5. Powers of officers. (1) Subject to such conditions and limitations as the Commissioner may impose, an officer of State tax may exercise the powers and discharge the duties conferred or imposed on him under this Act. (2) An officer of State tax may exercise the powers and discharge the duties conferred or imposed under this Act on any other officer of State tax who is subordinate to him., (3) The Commissioner, may subject to such conditions and limitations as may be specified in this behalf by him, delegate his powers to any other officer who is subordinate to him. (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(91) of the Uttarakhand Goods and Service Act, 2017. 23. He further submits that from conjoint reading of Section 29(1) read with Section 2(91) and Section 2(4) of the Uttarakhand Goods and Service Act, 2017, the order of cancellation of registration has been passed by the Assistant Commissioner and hence the Appeal will lie under Section 107(1) of the Act before the Commissioner. 24. He further submits that even as per Section 2(4) of the Uttarakhand Goods and Service Tax Act, 2017, it clearly defines that adjudicating authority excludes the Commissioner and as per order dated 30.06.2017, the Assistant Commissioner, being an officer under the Act is a proper officer and in terms of Section 29(1) is an adjudicating authority, as defined under Section 2(4) of the Act and hence, for all purposes, the Appeal will lie before the Commissioner. 25. It is also contended by the learned counsel for the review applicant that here in the present case, the Assistant Commissioner cancelled the registration of GST of the writ petitioner and the writ petitioner/appellant himself preferred an Appeal before the Appellate Authority and that is the reason, by relief No. 3, the writ petitioner /appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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