form within stipulated time
Case Title | M/s Atlas PVC Pipes Ltd Vs State of Orissa and ors. |
Court | Orissa High Court |
Honorable Judges | Justice.Krushna Ram Mohapatra |
Citation | 2022 (6) GSTPanacea 221 HC Orissa WPA 14163 of 2022 |
Judgement Date | 29-June-2022 |
Council for Petitioner | Sudeepta Kumar Singh |
Council for UOI | |
Council for State | Sunil Mishra |
Favour | Assessee |
Section | 107, 112,109 and 74 of CGST Act |
The Orissa High Court bench of Justice Krushna Ram Mohapatra has held that rejecting the appeal on the ground of non submission of certified copy of impugned order is improper.
FACTS OF THE CASE
The petitioner deals in the supply of pipes. The petitioner is issued a demand order by the respondent under section 74 of OGST Act for the tax period April 2019 to Mar 2020. The petitioner filed appeal under Section 107 of OGST Act by complying the condition of depositing 10% of disputed amount of tax, but coculd not being submitted the certified copy of impugned order along with appeal. The appellate authority directed to petitioner to submit the certified copy of impugned order. The petitioner requested for the certified copy but due to holiday on next day it was not provided and subsequently also not. Hence the appeal stands to be dismissed by the appellate authority. The council of petitioner placed the reliance of case judgement in Shree Jagannath Traders Vs Commissioner of State Tax, Orrisa 15061 of 2021. 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. The provisions of Section 107 suggest that the appeal is required to be filed within stipulated period as envisaged under sub-section (1) and the filing of such appeal is hedged with conditions inter alia that besides admitted tax, interest, fine, fee and penalty, a sum equal to ten per cent of the remaining amount of tax in dispute arising from order challenged in appeal is required to be deposited. As is required under sub-section (5) ibid. read with the definition of the term “prescribed” in Section 2(87), the appeal is to be filed in the form along with verification in the manner prescribed. It is understood by having a glance at notice dated 13.05.2022 that but for the defect in terms of sub-rule (3) of Rule 108, there is no deficiency in filing the appeal as required under Section 107.
form within stipulated time
COURT HELD
Investigating further into the instant matter, this Court finds that 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 properly and petitioner cannot be said to be idolent
form within stipulated time
ANALYSIS OF THE JUDGEMENT
Authority should consider the approach of tax payer in the light of law as well in the common parlance as possible as it may. It is error nous to just passing any order vehemently.
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