Atlas Pvc Pipes Limited Vs State of Odisha (Orissa High Court)
It is ex facie clear from the copy of Memo of Appeal in Form GST APL-01 vide Annexure-2 series to the writ petition that having received the Order passed under Section 74 of the OGST Act on 20.01.2021, the Petitioner filed the appeal invoking Section 107 on 21.04.2021. The statutory prescribed period for preferring appeal fell within the extended period in consonance with Finance Department Notification bearing No.13898-FIN-CT1-TAX-0002/2020 [SRO No.129/2021], dated 07.05.2021 issued in exercise of powers under Section 168A of the OGST Act read with Judgment(s)/Order(s) of Hon’ble Supreme Court rendered in the case of In Re: Cognizance For Extension Of Limitation, SMW(C) No. 3 of 2020.
If present case is considered in the light of Order dated 10.01.2022 of the Hon’ble Apex Court, the petitioner is entitled to the benefit of exclusion of limitation of 7 days as stipulated in Rule 108(3) of the OGST Rules inasmuch as the certified copy of the Order dated 20.01.2021 being obtained on 21.05.2022 and offered to the Appellate Authority on 23.05.2022 for consideration in connection with the defect pointed out vide notice dated 13.05.2022, the same fell well within the 90 days period granted by the Hon’ble Supreme Court in the Order dated 10.01.2022.
Court finds that CGST Rule 108(3) has not prescribed for condonation of delay in the event where the Petitioner would fail to submit certified copy of the order impugned in the appeal nor is there any provision restricting application of Section 5 of the Limitation Act, 1963, in the context of supply of certified copy within period stipulated in sub-rule (3) ibid.
The requirement to furnish certified copy of the impugned order within seven days of filing of appeal is provided as a procedural requirement.
On the altar of default in compliance of such a procedural requirement, merit of the matter in appeal should not have been sacrificed. Since the Petitioner has enclosed the copy of impugned order as made available to it in the GST portal while filing the Memo of Appeal, non-submission of certified copy, as has rightly been conceded by the Additional Standing Counsel appearing on behalf of CT&GST Organisation, is to be treated as mere technical defect.
Keeping in view the concern and context reflected in the Judgments, amendments to the statute and executive instruction/clarification during the COVID-19 pandemic period, and the decisions rendered by the Courts as referred to above, it is apt to say that the Appellate Authority has not exercised its power in proper perspective and the Petitioner cannot be said to be indolent, rather he it has pursued its matter diligently.
In view of the above, the writ petition deserves to succeed.
FULL TEXT OF THE JUDGMENT/ORDER OF ORISSA HIGH COURT
This matter is taken up by virtual/physical mode.
2. Questioning the propriety of the Order dated 23.05.2022 whereby the Joint Commissioner of CT&GST, Cuttack-I Central Circle, Cuttack (opposite party No.2) rejected the Appeal bearing ARN#AD210421003076Y, filed on 21.04.2021 vide Reference No.ZD210522012469R, assailing the Order dated 20.01.2021 passed by the CT&GST Officer, Cuttack-I Central Circle, Cuttack (Opposite Party No.3) under Section 74 of the Odisha Goods and Services Act, 2017 (for brevity hereinafter referred to as “the OGST Act”), the Petitioner has filed this writ application with a prayer to set aside the impugned order and sought for a direction to the Appellate Authority (opposite party No.2) to entertain the appeal on merit.
3. The Petitioner, M/s. ATLAS PVC PIPES LIMITED, a Company incorporated under the provisions of the Companies Act, 1956, deals in supply of pipes. It claims to have participated in the proceeding under Section 74 of the OGST Act. Ultimately, the CT&GST Officer of Cuttack-I Central Circle-Opposite Party No.3 by order dated 20.01.2021 raised a demand to the tune of Rs.8,20,042/- (comprising tax of Rs.3,99,630/-, interest of Rs.53,212/- and penalty of Rs.3,67,200/-) pertaining to the tax periods from 1st April, 2019 to 31st March, 2020. Being aggrieved, on 21.04.2021 the Petitioner filed an appeal under Section 107 of the OGST Act. It is asserted by the Petitioner that in order to comply with the condition for filing of the appeal, although it deposited an amount of Rs.39,964/- being 10% of the tax in dispute in terms of sub-section (6) of Section 107, but could not submit the certified copy of the impugned order along with the appeal memo.
3.1. It is submitted by Mr. Singh, learned Advocate for the Petitioner that in addition to filing of the appeal by electronic mode, self-attested hardcopies of the documents including copy of the impugned order as made available to it in the GST web portal were furnished to the Appellate Authority-Opposite Party No.2. Nonetheless, the Petitioner received notice dated 13.05.2022 vide ARN/Appeal Case No. AD210421003076Y (Annexure-3 series), wherein it was indicated that the tax payer-Appellant was required to submit the certified copies within seven days of filing of the appeal. However, the Appellate Authority directed the Petitioner to submit the certified copy of the said document on or before 21.05.2022.
3.2. Mr. Singh with humility submitted that the Appellate Authority by issue of notice dated 13.05.2022 impliedly extended the period for submission of certified copy of order appealed against. In order to comply with the direction contained in said notice dated 13.05.2022, which was served on 20.05.2022, the Petitioner applied for and obtained certified copy of the required document on 21.05.2022 from the Office of Opposite Party No.3. Since the office of the Opposite Party No.2 was closed on 22.05.2022, being Sunday, step could only be taken on 23.05.2022 to comply with the terms of notice dated 13.05.2022. Although the Petitioner offered to submit the certified copy on 23.05.2022, the Opposite Party No.2 refused to receive the same on the plea that he had already passed the order of rejection of appeal and uploaded the same in the GST portal on 23.05.2022.
3.3. It is submitted by learned__ counsel that hyper-technical approach of the Appellate Authority rendered the Petitioner remediless inasmuch as there is no scope for approaching the Appellate Tribunal under Section 112 in view of the fact that as yet said Tribunal has not been constituted.
3.4. Learned counsel for Petitioner to buttress his argument placed reliance on the decision of this Court vide Order dated 07.06.2021 rendered in the case of Shree Jagannath Traders Vrs. Commissioner of State Tax, Odisha, Cuttack (W.P.(C) No.15061 of 2021). He further submitted that instead of showing pedantic approach, the Appellate Authority ought to have been pragmatic by taking into consideration the COVID-19 pandemic situation that persisted during the relevant period.
4. Mr. Mishra, learned Additional Standing Counsel (CT&GST) on the other hand, without objecting to the factual position, as stated above, urged that having filed the appeal in Form GST APL-01 as prescribed under sub-rule (1) on 21.04.2021, the Petitioner was required to furnish the certified copy of the impugned order dated 20.01.2021 within seven days of filing of said appeal in terms of sub-rule (3) of Rule 108 of the OGST Rules. As is apparent from the contents of the writ petition, the Petitioner took step to obtain certified copy only on 21.05.2022, i.e., the last date for complying with the direction contained in the notice dated 13.05.2022. It is, therefore, urged by Mr. Mishra that in such view of the matter, the Appellate Authority has committed no illegality in passing the impugned order rejecting the appeal, after adhering to the principles of natural justice by affording opportunity specifying date for compliance. Mr. Mishra further submitted that the requirement of sub-rule (3) of Rule 108 remained unsatisfied for more than one year of the filing of appeal, and as a consequence therefor, the matter does not warrant indulgence.
5. Fact available on record reveals that copy of the impugned order as made available to the Petitioner formed part of the Memo of Appeal. It is also apparent from the pleading that the Petitioner had only one day left for compliance from the date of service of the said notice. Accordingly, the Petitioner applied for certified copy of the impugned order on the very next day of receipt of aforesaid notice. Thus, it would have been better on the part of the Appellate Authority to verify the date of service of notice dated 13.05.2022 on the Petitioner (which was issued around one year from the date of filing of Memo of Appeal, i.e., 21.04.2021), before passing order dated 23.05.2022 rejecting the Memo of Appeal.
5.1. Further, it is not clear from the material on record as to whether the Authority had ever informed the noticee-appellant/assessee and/or his counsel, about the next date of proceeding. This obligation is sine qua non for compliance of the rules of natural justice.
6. This Court finds it apt to refer to the following provisions so far as relevant for the present purpose:
