Swati Samantray Vs Addl. Commissioner of State Tax (Appeal) (Orissa High Court)
The petitioner challenged the action of the Additional Commissioner of State Tax (Appeal) in not admitting an appeal filed on 25.01.2024 by issuing APL-2. The grievance arose because the Proper Officer had passed an order under Section 73 of the OGST Act on 06.06.2023, and the appeal was not being admitted on the ground that the order was passed after the cut-off date prescribed under the relevant notification. The petitioner submitted that Notification No. 52 of 2023-Central Tax dated 02.11.2023 was not available since it applied only to cases where orders had been been passed prior to 31.03.2023.
The petitioner relied upon the order dated 07.12.2023 passed by the High Court of Judicature at Patna in Civil Writ Jurisdiction Case No. 17202 of 2023, wherein the Division Bench considered Notification No. 53/2023-Central Tax dated 02.11.2023 issued under Section 148 of the Central Goods and Services Tax Act, 2017. The notification provided a special procedure for taxable persons who had not filed appeals within the period prescribed under Section 107(1) read with Section 107(4) against orders passed under Sections 73 or 74 on or before 31.03.2023, and for persons whose appeals had been rejected solely on limitation grounds. It permitted filing of appeals in FORM GST APL-01 on or before 31.01.2024, subject to specified payment conditions, including payment of admitted dues in full and 12.5% of the disputed tax, subject to the prescribed maximum, with at least 20% of such amount to be paid through the Electronic Cash Ledger. The notification also stated that no appeal would be admissible where the demand did not involve tax and that Chapter XIII of the CGST Rules, 2017 would apply mutatis mutandis.
The Patna High Court had observed that the difficulty in that case arose because the assessment order had been passed on 27.04.2023, which fell outside the notification’s cut-off date of 31.03.2023, and therefore the petitioner did not squarely fall within the notification. The Division Bench further observed that it did not find any rationale for fixing 31.03.2023 as the cut-off date, particularly when the notification itself was issued on 02.11.2023, and opined that orders passed at least three months before that date ought to have been considered for the beneficial treatment provided under the notification. It accordingly held that the petitioner in that case could also comply with the conditions of Notification No. 53/2023-Central Tax, whereupon the appellate order would stand set aside and the matter would receive fresh consideration by the first Appellate Authority.
The Orissa High Court stated that it was not inclined to take a view different from that expressed by the Patna High Court. It held that the matter required consideration by the first Appellate Authority in accordance with law, taking into account that the appeal had been filed before 31.01.2024, and directed the authority to admit the appeal filed under Annexure-2 in terms of Notification No. 53/2023-Central Tax dated 02.11.2023. With these observations and directions, the writ petition was disposed of.
FULL TEXT OF THE JUDGMENT/ORDER OF ORISSA HIGH COURT
This matter is taken up through hybrid mode.
2. Heard Ms. Itishree Tripathy, learned counsel appearing for the petitioner and Mr. Diganta Das, learned Standing Counsel for CT & GST Organization.
3. Being aggrieved by the action of opposite party no.1 in not admitting the appeal filed by the petitioner on 25.01.2024 by issuing the APL-2, the petitioner has approached this Court by filing the present writ petition.
4. Learned counsel for the petitioner contended that as the learned Proper Officer has passed the order under Section 73 of OGST Act on 06.06.2023, i.e., after the cut-off date, the appeal is not being admitted. She further contended that as per the notification dated 02.11.2023 bearing No. 52 of 2023-Central Tax, the petitioner could not able to avail the scheme as the said notification is applicable to the cases where orders were passed prior to 31.03.2023.
5. However, she brought to the notice of this Court that similar matter was considered by the High Court of Judicature at Patna in Civil Writ Jurisdiction Case No. 17202 of 2023 vide order dated 07.12.2023, wherein the Division Bench of the said Court has taken note of the notification dated 02.11.2023 bearing No. 53 of 2023-Central Tax and reproduced the same at paragraph-3 of the said order. For a just and proper adjudication of the case, the said notification as has been quoted in paragraph-3 of the said order is extracted herein below:-
“MINISTRY OF FINANCE
(Department of Revenue)
(CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS)
NOTIFICATION
New Delhi, the 2nd November, 2023
No. 53/2023- CENTRAL TAX
S.O. 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 subsection (1) of section 107 read with sub-section (4) of section 107 of the said Act, and the taxable persons whose appeal against the said order was rejected solely on the grounds that the said appeal was not filed within the time period specified in section 107, as the class of persons (hereinafter referred to as the said person) who shall follow the following special procedure for filing appeals in such cases:
2. The said person shall file an appeal against the said order in FORM GST APL-01 in accordance with subsection (1) of Section 107 of the said Act, on or before 31st day of January 2024:
Provided that an appeal against the said order filed in accordance with the provisions of section 107 of the Act, and pending before the Appellate Authority before the issuance of this notification, shall be deemed to have been filed in accordance with this notification, if it fulfills the condition specified at para 3 below.
a. No appeal shall be filed under this notification, unless the appellant has paid-
b. in full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him; and
c. a sum equal to twelve and a half per cent. of the remaining amount of tax in dispute arising from the said order, subject to a maximum of twenty-five crore rupees, in relation to which the appeal has been filed, out of which at least twenty percent should have been paid by debiting from the Electronic Cash Ledger.
4. No refund shall be granted on account of this notification till the disposal of the appeal, in respect of any amount paid by the appellant, either on their own or on the directions of any authority (or) court, in excess of the amount specified in para 3 of this notification before the issuance of this notification, for filing an appeal under subsection (1) of Section 107 of the said Act.
5. No appeal under this notification shall be admissible in respect of a demand not involving tax.
6. The provisions of Chapter XIII of the Central Goods and Service Tax Rules, 2017 (12 of 2017), shall mutatis mutandis, apply to an appeal filed under this notification.
[F. No. CBIC-20001/10/2023-GST]
RAGHAVENDRA PAL SINGH, Director”
At paragraph-4 of the order, the Division Bench of High Court of Judicature at Patna taking note of aforesaid notification observed that the difficulty insofar as its application to the petitioner’s case was the date on which the proper officer, being the Assessing Officer, had passed the order, which was dated 27.04.2023. The notification which was brought out on 02.11.2023 only permits appeal to be filed from orders passed by the proper officer on or before 31.03.2023, in case it was not instituted in time or within the time permitted for a delayed appeal, and in case where such delayed appeal preferred beyond the stipulated period in Section 107 (4) of the act has been rejected. The petitioner would not squarely fall under the notification.
The said Division Bench also observed in the next paragraph that “we do not see any rationale for the date fixed of 31.03.2023, as a cutoff date. We notice that the notification itself was brought out on 02.11.2023 and in such circumstances any order passed in at least three months before that date; the time provided for filing an appeal, ought to have been considered for such beneficial treatment”.
Accordingly the division bench opined that the petitioner also can be allowed to comply with the conditions in Notification No. 53 of 2023-Central Tax dated 02.11.2023 upon which the order passed in appeal would stand set aside and a fresh consideration will be made by the first Appellate Authority.
6. Thereby, this Court does not incline to take a different view than that of the view already expressed in the aforementioned case. As such, the matter requires consideration by the 1st Appellate Authority in accordance with law taking into account that the appeal has been filed before 31.01.2024 and admit the appeal filed under Annexure-2 in terms of the notification no.53/2023-Central Tax dated 02.11.2023.
7. With the above observation and direction, the writ petition stands disposed of.
