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

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2025:KER:33401 W.P.(C). No.37899 of 2024 2

BECHU KURIAN THOMAS, J. --------------------------------------- W.P.(C). No.37899 of 2024 --------------------------------------- Dated this the 8th day of April, 2025

JUDGMENT

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 2025:KER:33401 W.P.(C). No.37899 of 2024 3

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 2025:KER:33401 W.P.(C). No.37899 of 2024 4

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 2025:KER:33401 W.P.(C). No.37899 of 2024 5

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 2025:KER:33401 W.P.(C). No.37899 of 2024 6

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 2025:KER:33401 W.P.(C). No.37899 of 2024 7

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 2025:KER:33401 W.P.(C). No.37899 of 2024 8

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 2025:KER:33401 W.P.(C). No.37899 of 2024 9

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 2025:KER:33401 W.P.(C). No.37899 of 2024 10

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.

2025:KER:33401 W.P.(C). No.37899 of 2024 11

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 2025:KER:33401 W.P.(C). No.37899 of 2024 12

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