Case Title | BMG Informatics Pvt Ltd vs Union of India |
Court | Gauhati High Court |
Honorable Judges | Justice Achintya Malla Bujor Barua |
Citation | 2021 (9) GST Panacea 28 HC Gauhati WP(C)/3878/2021 |
Judgement Date | 2-September-2021 |
Council for Petitioner | Mr. S C Keyal |
Council for Respondent | Mr. P Baruah |
The High Court of Gauhati, bench of Justice Achintya Malla Bujor Barua, has held that, the Appellate Authority may adopt a liberal approach considering that these are times of restricted functioning of Courts and tribunals due to the Covid pandemic and consider the petitioner’s appeal after the prescribed time in law
FACTS OF THE CASE
The Adjudicating Authority passed the impugned order on 14th August, 2020 and uploaded it on the same day. The last date for the filing of the appeal against the said order was 17th November, 2020. The Petitioner file the appeal on 13th November, 2020 electronically, accompanied by a downloaded copy of the order appealed against. Under Rule 108 (3) of the OGST Rules, 2017, the appeal had to be accompanied by a certified copy of the order appealed against.
This had to be submitted within seven days of the filing of the appeal. Under the proviso to Rule 108(3) if the certified copy is submitted within seven days of the filing of the appeal, then the date of filing of the appeal would be the date of the issue of the provisional acknowledgment. If it is filed after seven days, the date of filing of the appeal would be the date of submission of such certified copy.
The Petitioner could furnish a certified copy of the order of appealed against only on 9th March, 2021, i.e., more than three months and 25 days after the filing of the appeal. According to the Appellate Authority, i.e., the Additional Commissioner of State Tax (Appeal), Balasore, this delay could not be condoned and, therefore, the appeal itself was dismissed as not having been preferred in time.
Section 107 (1) Any person aggrieved by any decision or order passed under the Odisha Goods and Service Tax Act by any adjudicating authority, may appeal to such appellate authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person.
Section 107 (4) The Appellate Authority may, if he is satisfied that, the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or six months, as the case may be, allow it to be presented within a further period of one month.
It is seen that the Appellant had to show the Appellate Authority the appellant was prevented by sufficient cause from presenting the appeal within a period of three months from the date of the impugned order.
The Petitioner, points out that while the appeal was accompanied by the downloaded printed copy of the order appealed against at the time of filling of the appeal, it was not accompanied by the certified copy thereof at that stage since the Lawyer who had filed the appeal was in self quarantine as he had come into contact with a client who had tested positive for Covid-19.
COURT HELD
The Court held that the difficulties generally faced by lawyers and litigants in applying for and obtaining certified copies of orders is generally known. Acknowledging this reality, the explanation offered for the delay in furnishing such certified copy ought to have been accepted by the Appellate Authority and the delay in that regard ought to have been condoned. Also the wording of Section 107 (4) is such that the authority is not precluded from condoning a delay of a longer period.
The explanation offered by the petitioner is a plausible and not an unreasonable one, especially in these Covid times, and further considering that a downloaded copy thereof was in fact submitted along with the appeal which was otherwise filed within time, this Court is of the view that the mere delay in enclosing a certified copy of order appealed against along with the appeal should not come in the way of the Petitioner’s appeal for being considered on merits by the Appellate Authority.
It is clarified that the Appellate Authority may adopt a liberal approach considering that these are times of restricted functioning of Courts and tribunals due to the Covid pandemic. As long as the appeal is accompanied by an ordinary downloaded copy of the order appealed against, verified as a true copy by the Advocate for the Appellant, the delay in filing such certified copy, subject to it not being extraordinary, the Appellate Authority may, as long as the restricted functioning of the Court and Tribunals due to the Covid pandemic continues, be condoned. The writ petition is disposed of in the above terms.
ANALYSIS OF THE JUDGEMENT
By noticing the above order we analyse that it was brought to attention that in other similar matters, the Appellate Authority has declined to condone the delay in the appellants filing a certified copy of the order appealed against. It is clarified that the Appellate Authority may adopt a liberal approach considering that these are times of restricted functioning of Courts and tribunals due to the Covid pandemic. As long as the appeal is accompanied by an ordinary downloaded copy of the order appealed against, verified as a true copy by the Advocate for the Appellant, the delay in filing such certified copy, subject to it not being extraordinary, the Appellate Authority may, as long as the restricted functioning of the Court and Tribunals due to the Covid pandemic continues, be condoned.
Download PDF:
BMG Informatics Pvt Ltd
For Reference Visit:
Gauhati High Court