Case Law Details
A S Engineering Vs State of U.P. and Another (Allahabad High Court)
The Allahabad High Court considered a writ petition where the petitioner challenged the rejection of its first appeal on the ground of limitation. The petitioner relied upon the Division Bench judgment in M/S Associate Molasses Transport Company Vs. State of U.P. and Another, which in turn relied on the earlier decision in M/S Bambino Agro Industries Ltd. Vs. State of Uttar Pradesh & Anr. In the cited judgments, the Court had held that where an ex parte adjudication order was merely uploaded on the common GST portal and not properly communicated, the issue of limitation required reconsideration by the appellate authority. The petitioner submitted that its appeal had been dismissed solely on the ground of delay and therefore deserved fresh consideration. The State opposed the writ petition, contending that after the constitution of the GST Tribunal, the petitioner should pursue a second appeal under Section 112(8) of the GST Act. After hearing the parties, the Court observed that the Division Bench had already taken a view that dismissal of an appeal on limitation grounds in such circumstances was unsustainable and the matter should be remitted for fresh adjudication on merits. Accordingly, the High Court set aside the appellate order dated 11.06.2025 and remitted the matter to the appellate authority for fresh decision in accordance with law, after granting opportunity of hearing to the parties and keeping in mind the principles laid down in M/S Bambino Agro Industries Ltd. The Court directed the appellate authority to decide the matter within two months from receipt of the certified copy of the order. The writ petition was partly allowed.
FULL TEXT OF THE JUDGMENT/ORDER OF ALLAHABAD HIGH COURT
1. Learned counsel for petitioner states that first appeal has been rejected on the ground of delay. He has relied upon a decision of Division Bench of this Court rendered in Writ Tax No. 539 of 2026 (M/S Associate Molasses Transport Company Vs. State of U.P. and Another), decided on 27.1.2026, which reads as under;
“1. On oral prayer, Ms. Vishakha Dubey, learned counsel for the petitioner is permitted to amend the prayer clause to challenge the appeal order dated 14.10.2025 (Annexure No.6) whereby the appeal of the petitioner against the ex-parte adjudication order has been dismissed as barred by limitation.
2. Presently, the writ petition has been filed to challenge the appeal order dated 14.10.2025.
3. Relying on M/S Bambino Agro Industries Ltd. Vs. State of Uttar Pradesh & Anr.; 2025:AHC:229995-DB, it has been stressed that the appeal authority has wrongly dismissed the appeal filed by the petitioner as time barred inasmuch as ex parte order dated 10.02.2025 was challenged in appeal within limitation computed from the date of actual communication.
4. Prima facie, the order passed by the appeal authority may run contrary to the law laid down by this Court in M/S Bambino Agro Industries Ltd. (supra).
5. Sri Arvind Kumar Mishra, learned Standing Counsel has raised objection that since the appeal order has been challenged the matter may be placed before learned Single Judge.
6. Though, the preliminary objection is technically correct, at the same time to serve the best interest of justice, no useful purpose may be served in pushing this file which is before us, to the roster of the learned Single Judge in view of the order proposed to be passed.
7. In view of the law laid down in M/S Bambino Agro Industries Ltd. (supra), it admits of no doubt that the order of appeal authority is not sustainable on the issue of limitation. Once the assessee has not been communicated the ex-parte adjudication order that had only been uploaded on the common portal, the issue of limitation did survive for consideration by the appeal authority in view of the stand taken by the present petitioner that ex-parte adjudication order dated 14.10.2025, much later upon initiation of recovery proceedings.
8. Though, we are not making any observation as may affect the findings that may be returned by the appeal authority on the issue of limitation, it does commend to us that the matter requires afresh consideration by the appeal authority, keeping in mind the law laid down in M/S Bambino Agro Industries Ltd. (supra).
9. In making this observation we are mindful of the fact that in a two tier mechanism created under the Act one appeal forum may not be easily lost to the petitioner on a wrong appreciation of law pertaining to limitation, specially when the adjudication order is itself ex-parte. That nature of the adjudication order itself commends that petitioner be given adequate opportunity of hearing if not before the adjudicating authority they at least before first appeal.
10. Accordingly, impugned order dated 14.10.2025 is set aside. The matter is remitted to the appeal authority to pass appropriate orders, in accordance with law keeping in mind the law laid by this Court in M/S Bambino Agro Industries Ltd. (supra).
11. With the aforesaid observation, the present writ petition stands disposed of.”
2. Learned counsel for petitioner submits that appeal was dismissed on the ground of limitation and, as such, it may be heard afresh and decided in view of directions of Division Bench of this Court.
3. Learned Standing Counsel has opposed the writ petition and submitted that after constitution of GST Tribunal, petitioner should approach the Tribunal by filing second appeal under Section 112 (8) of Goods and Services Tax Act.
4. I have heard learned counsel for parties and perused the material on record. From perusal of judgment of Division Bench of this Court rendered in case of M/S Associate Molasses Transport Company (Supra), I find that Division Bench had relied upon another judgment rendered in case of M/S Bambino Agro Industries Ltd. Vs. State of Uttar Pradesh & Anr.; 2025:AHC:229995-DB.
5. Once the Division Bench had taken a view that in case appeal was decided on the basis of limitation the said order needs to be set aside and matter has to be remitted back to the appellate authority to decide it afresh on merits, the order impugned dated 11.06.2025 passed by respondent no. 3 is hereby set aside.
6. The matter is remitted to the appellate authority to decide it afresh, in accordance with law after providing opportunity of hearing to the parties and keeping in mind the law laid down by this Court in M/S Bambino Agro Industries Ltd. (supra), within a period of two months from the date of receipt of a certified copy of this order.
7. Writ petition is partly allowed.
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