Case Law Details
M/s. S K Takappa S/O Kalappa Vs Assistant Commissioner of Commercial Taxes (Appeals) (Karnataka High Court)
Karnataka High Court has intervened in a GST appeal case, directing the Assistant Commissioner of Commercial Taxes (Appeals) to hear the appeal filed by S K Takappa on its merits. The petitioner, a registered dealer, had challenged an order passed under Section 73(9) and 73(10) of the CGST/SGST Act, 2017, arguing that their appeal was wrongly dismissed due to a perceived delay.
The petitioner had filed their appeal on the 90th day from the date of communication of the impugned order via email, which they argued was within the permissible time frame under Section 107 of the 2017 Act. However, the appellate authority dismissed the appeal, citing a two-day delay, without providing a hearing. The petitioner further submitted a rectification application, including an affidavit requesting condonation of delay, which was also dismissed.
The Karnataka High Court found that the appellate authority had failed to exercise its powers judiciously. The court emphasized that since the appeal was filed within 90 days of the email communication, as per Section 169 of the 2017 Act, the appellate authority was legally obligated to hear the appeal on its merits. Additionally, the court noted that the petitioner’s rectification application, along with the request for condonation of delay, should have prompted the appellate authority to consider the appeal under Section 107(2) of the 2017 Act.
The court also pointed out that if the appellate authority believed the appeal was filed beyond the prescribed period, it was incumbent upon them to provide the petitioner with a hearing before rejecting the appeal. Consequently, the Karnataka High Court set aside the appellate authority’s dismissal orders and directed them to hear the petitioner’s appeal on its merits and pass an appropriate order in accordance with the law.
FULL TEXT OF THE JUDGMENT/ORDER OF KARNATAKA HIGH COURT
Learned additional Government Advocate Sri. K. Hemaku mar accepts notice for respondents.
2. The petitioner, registered dealer under the provisions of CGST/SGST Act, 2017 (for short, ‘2017 Act’) is before this Court under Article 226 of the Constitution of India questioning the order passed by second respondent in Appeal No. KGST/AP.No.209/2023-24 dated 08.10.2024 and also consequential rectification order in Appeal KGST/AP-209/2023-24 dated 13.01.2025 with a prayer to direct respondent No.2 to admit the appeal dated 22.03.2024 and to hear on merits.
3. Heard learned counsel Sri. K. M. Shivayogiswamy for petitioner and learned Additional Government Advocate K. Hemakumar for respondents. Perused the writ petition papers.
4. Learned counsel for the petitioner would submit that against order dated 20.12.2023 passed under Section 73(9) and 73(10) of 2017 Act which was communicated to the petitioner under Annexure-C, e-mail dated 22.12.2023, filed appeal before the second respondent on 22.03.2024. It is contended that the appeal was filed on the 90th day and it was within the time in terms of Section 107 of 2017 Act. Learned counsel would submit that the second respondent without examining as to whether the appeal filed was within the time and without providing an opportunity of hearing, dismissed the appeal solely on the ground of delay of two days in filing the appeal. Learned counsel would further submit that subsequently, petitioner filed rectification application and along with rectification application, petitioner had also filed affidavit praying to condone the delay if any, in preferring the appeal. Learned counsel would further submit that the rectification application also came to be dismissed by order dated 13.01.2025 (Annexure-H). Learned counsel would submit that the order passed by the second respondent is without application of mind and without affording any opportunity.
5. Learned counsel would further submit that since the appeal filed was within 90 days from the date of receipt of impugned order, the respondent No.2 was under legal obligation to hear the appeal on merits.
6. Per contra, learned Additional Government Advocate Sri. K. Hemakumar would submit that the order is dated 20.12.2023 and on the same day, the order would be uploaded on the portal which the petitioner has failed to verify.
7. Having heard the learned counsel appearing for the parties and on perusal of the entire writ petition papers, I am of the view that second respondent ought to have exercised its power under Section 107 (1) and (2) of 2017 Act judiciously and ought to have entertained the appeal and passed order on merits.
8. Admittedly, order under appeal was passed on 20.12.2023 which was communicated to the petitioner through e-mail on 22.12.2023. In terms of Section 169 of 2017 Act, one of the mode of communication is by e-mail. From the date of communication, appeal is filed on 90th day. Section 107 of KGST Act, 2017 provides three months time to file appeal from the date of order or from the date of communication.
9. Even otherwise, the petitioner had filed rectification application and along with rectification application, petitioner had also filed application along with affidavit, praying to condone the delay, if any in preferring the appeal. If such rectification application along with application for condonation of delay is filed, second respondent ought to have exercised its power under Section 107 (2) of 2017 Act, judiciously since the appeal was presented within the condonable period. The respondent No.2 failed to apply its mind judiciously and failed to take a decision in terms of Section 107(2) of 2017 Act. Moreover, if the second respondent-Appellate Authority was of the view that the appeal filed was beyond the period prescribed under Section 107(1) of 2017 Act, second respondent-Appellate Authority ought to have heard petitioner before passing the order rejecting the appeal.
10. In the above circumstances, the following:
ORDER
a) Annexure-E, order bearing Appeal No.KGST/AP.No.209/2023-24 dated 08.10.2024 as well as consequential rectification order dated 13.01.2025 bearing Appeal No.KGST/AP-209/202-24 (Annexure-H) are set aside.
b) Second respondent is directed to hear the appeal filed by the petitioner at Annexure-D on merits since the appeal is filed on the 90th day from the date of communication by e-mail on merit and pass appropriate order in accordance with law.
c) With the above, writ petition stands disposed of.
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