M/S. U P Materials vs The Assistant Commissioner Of Central ...

Petitioner is aggrieved by an order issued under Section 73 of the Central Goods and Services Tax Act, 2017/State Goods and Services Tax Act, 2017 (for short, 'the CGST/SGST Act') and also challenges the order of the Appellate Authority under the said Act, dismissing the appeal on the ground of bar of limitation.

2. Petitioner is a partnership firm engaged in the supply of building materials. For the period from July 2017 to January 2020, proceedings were initiated against the petitioner for availing ineligible Input Tax Credit and for non filing of return. Pursuant to a show cause notice, the first respondent by an order dated 15-05-2023, rejected the objections of the petitioner and determined the amount due towards input tax credit irregularly availed, apart from interest, tax and penalty as per Ext.P1 order. Though the date of the order is as mentioned above, the summary of the order in Form GST DRC-07 is dated 16-06-2023 and was uploaded only on then.

3. Aggrieved by the said order of determination, petitioner

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preferred an appeal on 13.10.2023, claiming that there was a delay of only 29 days in filing the appeal, reckoning the date of the 'summary of the order' to be the date from which the time started to run. After explaining the reasons for the delay of 29 days in filing the appeal, petitioner sought for its condonation. However, the Appellate Authority, by Ext.P6 order dated 07.03.2024, dismissed the appeal on the ground of limitation. Petitioner challenges the aforesaid orders contending that the dismissal of the appeal on the ground of bar of limitation is incorrect as the appeal was filed on the 119th day from the date of uploading the summary of the order in the portal, and hence the delay was condonable.

4. A statement has been filed on behalf of the respondents 1 and 2, stating that Ext.P1 order in original No.2/2023 dated 15.05.2023, was dispatched on 18.05.2023 by registered post and was received by the petitioner on 19.05.2023, and hence, the appeal was filed beyond the condonable period. It is also stated that the appeal ought to have been preferred within three months from the date of communication of the order or at least within another thirty days with a petition to condone the delay. It is also stated that as the petitioner had received the order on 19.05.2023, the appeal ought to have been filed within three months from the said date or another thirty days with a petition to condone the delay.

5. During the course of hearing, this Court expressed certain

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doubts and hence an additional statement was filed by the respondents, wherein, the acknowledgement card indicating the receipt of the order on 19-05-2023 was produced. It is stated inter alia that, as per instruction dated 23-11-2023, the proper officers were directed to ensure that the summary of the order in original is uploaded electronically in Form GST DRC-07 and in the instant case, the summary of the order was uploaded only on 16-06-2023. It is further stated that the date of the order in column 5 of Form GST APL-01 is auto generated but column 7 can be altered by the appellant.

6. Sri. Santhosh P. Abraham, the learned counsel for the petitioner submitted that the appeal could have been filed only against the order in original along with the summary of the order, and since the date of order and the date of the summary of the order were different, the date on which the latter was uploaded in the portal ought to be treated as the starting point for calculating the period of limitation. It was also submitted that the auto generated order number in column 5 of Form APL-01 refers to the number of the 'summary of the order' which also indicates that the appeal could not have been filed without such summary of the order being uploaded.

7. Sri. Rajesh K. Raju, the learned Standing Counsel for the respondents on the other hand contended that the statute provides for filing an appeal from the 'date of communication of the order' and as

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evident from Ext.R1(b), petitioner had received the copy of the order on 19-05-2023, and hence the appeal should have been filed within 90 days, from the said date. The decision of the Bombay High Court in Meritas Hotel Pvt. Ltd. v. The State of Maharashtra and Others (2022) 98 GSTR 297 (Bom) was also relied upon.

8. I have considered the rival contentions. The question that arises is whether the rejection of the appeal on the ground of bar of limitation is legally justified or not?

9. Section 107 of the CGST Act provides for an appeal to be preferred against a decision or order passed under the Act within three months from the date on which the order is communicated. Rule 108 of the CGST Rule as it existed then, stipulated that the appeal has to be filed in form GST APL-01 along with the relevant documents, "either electronically or otherwise, as may be notified by the Commissioner". The above italicised portion of rule 108 of the CGST Rules was substituted with effect from 04-08-2023 with the words "electronically" and a proviso was added that the appeal in Form GST APL-01 can be filed manually only if "the Commissioner has so notified or the same cannot be filed electronically due to non-availability of the decision or order to be appealed against on common portal". Thus, till 04-08-2023, manual filing was permissible only if the Commissioner had issued a notification to that effect. There is nothing to indicate that such a notification was ever issued

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by the Commissioner till 04-08-2023. Thus it can be assimilated that till 04-08-2023, filing of an appeal and uploading of the order were entwined activities. This is further evident from the fact that the auto generated number in column 5 of the form for filing appeal (Form GST APL-01) refers to the summary of the order which was uploaded only on 16-06-2023.

Hence, uploading of the order in original and the summary of the order in the common portal were both required to be satisfied, to enable an appeal to be filed electronically as per the provisions of the statute and the Rules, at least till 04-08-2023, whereby virtue of the amendment to the Rules, appeal was permitted to be filed manually if the order or decision appealed against was not available in the common portal.

10. With the date of the order in original and the date of the summary of the order uploaded in the common portal, being different, that too, at a time when appeals were permitted to be filed only electronically, petitioner cannot be found fault with for having calculated the period of limitation for filing the appeal from the date when the summary of the order was uploaded in the common portal. There was undoubtedly vagueness in the method available for filing an appeal. The confusion in law cannot destroy the right of a taxpayer to prefer an appeal especially when the matter involves financial liabilities.

11. Apart from the above, failure of the respondents to upload the summary of the order on the date of passing of the order in original or at

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least immediately thereafter, cannot result in depriving the petitioner of his right to prefer an appeal and obtain an order on merits. In this context, the decision of the Gujarat High Court in Gujarat State Petronet Limited v. Union of India [(2022) 98 GSTR 65 (Guj)] is relevant. In the said decision, it was observed that "Without the order being uploaded, petitioner could not file the appeal and therefore, the contention raised on behalf, the respondent that the uploading of the order and filing of the appeal are two different processes, is not tenable in law. Moreover, filing of the appeal and uploading of the order are intertwined activities. The order is required to be uploaded online so that the appeal can be filed electronically as per the mandate of the provisions of the act and the rules. However, there is no provision or procedure to file the appeal manually. In such circumstances, there was no failure on the part of the petitioner to file the appeal within the prescribed period of limitation as a period of limitation did not start till the order passed by the adjudicating Authority was uploaded on the GST portal............................"

12. The learned Standing Counsel had, however, invited the attention of this Court to the decision in Meritas Hotel Pvt. Ltd. v. The State of Maharashtra and Others [(2022) 98 GSTR 297 (Bom)] wherein a Division Bench of the Bombay High Court observed that for the purpose of limitation, the date of communication of the impugned

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assessment order by email has to be regarded as the date for the purpose of calculating the period of limitation. After referring to the decision in Assistant Commissioner (CT) LTU, Kakkinada and Others v. Glaxo Smith Kline Consumer Health Care Limited [(2020) 19 SCC 681], it was further observed that the date of uploading of the impugned assessment order in the GST portal cannot be regarded as the date of communication for the purpose of calculating the limitation.

13. According to me, the facts in the instant case compel this Court to follow the principles laid down in the decision in Gujarat State Petronet Limited's case (supra), especially since, the implication of the auto generated number in column 5 of the form for filing appeal (Form GST APL-01) was not brought to the notice of the Court in case of Meritas (supra). Further, as observed in Glaxo Smith Kline Consumer Health Care Limited case (supra), the principle that High Court should normally refuse to interfere when an alternative effective remedy is available to the aggrieved person is a self imposed restriction. Hence, in appropriate cases, the self imposed restriction need not act as a total bar in entertaining a writ petition.

14. Concededly, when the order in original was issued, there was no notification permitting appeals to be filed manually. Therefore, when the order was communicated to the petitioner, he could have only filed an appeal in the electronic mode, which required the summary of the

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order also to be attached. Column 5 of Form GST APL-01 for filing an appeal provides for the incorporation of an auto generated number relating to the summary of the order. This indicates that without the summary of the order, the appeal could not have been filed on the date of receipt of the order in original. Even on the date of uploading the summary of the order, the Commissioner had not issued any notification permitting filing of an appeal manually. Of course, by the time the appeal was filed, i.e, on 13-10-2023, the Commissioner had issued a notification permitting appeals under section 107 of the CGST Act to be filed manually. The amendment of 04-08-2023 permitting manual filing of appeal when the order impugned was not available is also subsequent to the uploading of the summary of the order.

15. When confusion arises regarding the date on which the limitation for filing an appeal commences, it is only appropriate that the same be interpreted in a manner beneficial to the assessee. As in the instant case, the date of the order and the date of the summary of the order are different, the assessee ought to be given the benefit of the latter date. The aforesaid principle is all the more necessary to be adopted in the instant case, since obtaining an order on merits must be the norm and dismissing an appeal on technicalities, an exception.

16. Viewed in such a perspective, this Court is of the opinion that the limitation for filing an appeal against Ext.P1 commenced only from

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the date of Ext.P2 i.e; 16.06.2023. Hence the appeal filed on 13.10.2023 ought to be treated as within the condonable period of limitation. In the aforesaid circumstances, the impugned order Ext.P6 is set aside, and the matter is remitted back to the Appellate Authority for a fresh consideration of the appeal on merits.

The writ petition is allowed as above.

Sd/-

BECHU KURIAN THOMAS

JUDGE

Jka/08.04.25.

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APPENDIX OF WP(C) 37899/2024

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF THE ORDER C.V. NO.V/15/1/2022

ADJ.DIN 20230558T1010000F416] DATED 15-05-

2023 ISSUED BY THE 1 ST RESPONDENT

Exhibit P2 TRUE COPY OF THE ORDER FORM GST DRC-07

NO.ZD32062311822V DATED 16-06-2023

Exhibit P3 TRUE COPY OF THE APPEAL IN FORM GST APL 01

DATED 13-10-2023 WITH ITS ANNEXURE

Exhibit P4 TRUE COPY OF THE HEARING NOTE SUBMITTED

BEFORE THE 2 ND RESPONDENT

Exhibit P5 TRUE COPY OF THE RECORD OF PERSONAL HEARING

IN A.NO.71/GST/CHN/ADC-JC/2023 ISSUED BY

THE 2 ND RESPONDENT

Exhibit P6 TRUE COPY OF THE APPEAL ORDER

NO.A.NO.71/GST/CHN/ADC-JC/2023 [DIN

20240358XJ 0000333B23] DATED 7-03- 2024

ISSUED BY THE 2 ND RESPONDENT

Exhibit P7 TRUE COPY OF THE SCREEN SHOT OF ADDITIONAL

NOTICE AND ORDERS PERTAINING TO THE

PETITIONER

Exhibit P8 TRUE COPY OF THE SCREEN SHOT OF THE

ADDITIONAL NOTICE AND ORDERS PERTAINING TO

THE SISTER CONCERN OF THE PETITIONER ALONG

WITH THE ORDER IN ORIGINAL, ORDER U/S 74,

SUMMARY ORDER AND FORM GST APL-01 DATED

25.10.2024

RESPONDENT ANNEXURES

Annexure R1(a) A TRUE COPY OF THE POSTAL RECEIPT NO.

RL668222404IN DATED 18/5/2023

Annexure R1(b) A TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT

DATED 19/5/2023

Exhibit R1(c) A TRUE COPY OF THE SCREENSHOT FROM THE WEB

PORTAL OF CENTRAL BOARD OF INDIRECT TAXES

AND CUSTOMS SHOWING UPLOADING OF THE ORDER-

IN-ORIGINAL ALONG WITH FORM DRC-07

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Exhibit R1(d) A TRUE COPY OF THE SCREENSHOT FROM THE WEB

PORTAL OF CENTRAL BOARD OF INDIRECT TAXES

AND CUSTOMS SHOWING THE ORDER NUMBER AND THE

ORDER ISSUE DATE AS 15/5/2023

Exhibit R1(e) A TRUE COPY OF THE SCREENSHOT FROM THE WEB

PORTAL OF CENTRAL BOARD OF INDIRECT TAXES

AND CUSTOMS, SHOWING THE ORDER-IN-ORIGINAL

IN ENLARGED SIZE