2022 (7) TMI 130 - HC - GST

Appeal dismissal overturned as certified copy submitted within extended 90-day limitation period under pandemic relief

The Orissa HC allowed a petition challenging dismissal of an appeal for failure to submit certified copy within prescribed time. The petitioner obtained ... Submission of certified copy - procedural requirement - substantial compliance - condonation of delay - extension of limitation due to COVID-19 - applicability of Section 5 of the Limitation Act - hyper technical approach - appeal restoredSubmission of certified copy - procedural requirement - substantial compliance - hyper technical approach - Whether the Appellate Authority was justified in rejecting the appeal for non-submission of the certified copy of the impugned order within seven days and whether such rejection ought to bar consideration of the appeal on merits. - HELD THAT: - The Court held that the requirement to furnish a certified copy within seven days under Rule 108(3) is a procedural requirement and non-compliance with that requirement in the facts of this case amounted to a mere technical defect. The petitioner had filed the appeal within the prescribed/extended limitation and had enclosed a copy of the impugned order as available on the GST portal with the memo of appeal. Given the circumstances - including the short interval between service of the notice and the date available to the petitioner to comply, the pandemic-related restrictions, and precedent of this Court adopting a liberal approach where a downloaded copy was filed and an explanation was plausible - the Appellate Authority's hyper-technical rejection was not justified. The Court further observed that the Appellate Authority should have verified the date of service of the notice before rejecting the appeal and that the principles of natural justice required informing the appellant of further proceedings so as to enable compliance. [Paras 5, 6, 7]Impugned order rejecting the appeal for non-submission of the certified copy is set aside and the appeal is restored to the file for decision on merits.Extension of limitation due to COVID-19 - condonation of delay - applicability of Section 5 of the Limitation Act - Whether the petitioner was entitled to benefit of limitation extension/condonation in view of COVID-19 related orders and the Limitation Act principles, so that the certified copy submitted and offered in May 2022 fell within allowable time. - HELD THAT: - Relying on the Supreme Court's orders extending and excluding periods of limitation in view of the COVID-19 pandemic and this Court's precedent, the Court held that the short delay in submitting the certified copy fell within the exclusion/relief granted by higher orders (including restoration of the order of 23.03.2020 and the 90-day rule). Further, Rule 108(3) does not expressly exclude applicability of Section 5 of the Limitation Act; hence principles permitting condonation apply. Consequently, obtaining the certified copy on 21.05.2022 and offering it on 23.05.2022 was within the relief envisaged by the apex court's orders and could not justify outright rejection of the appeal. [Paras 6]Petitioner entitled to the benefit of the period excluded/extended on account of COVID-19 and the short delay in submission of the certified copy is to be treated as condoned for the purposes of considering the appeal.Final Conclusion: The writ petition is allowed: the order rejecting the appeal dated 23.05.2022 is set aside, the appeal (relating to tax period 1st April, 2019 to 31st March, 2020) is restored to file and the Appellate Authority is directed to permit the petitioner to produce the certified copy and decide the appeal on merits expeditiously in accordance with law. Issues Involved:1. Propriety of the Order dated 23.05.2022 rejecting the appeal for non-submission of certified copy.2. Compliance with procedural requirements under Section 107 of OGST Act and Rule 108 of OGST Rules.3. Impact of COVID-19 pandemic on procedural compliance and limitation periods.4. Applicability of Section 5 of the Limitation Act, 1963 in the context of OGST procedural requirements.Issue-wise Detailed Analysis:1. Propriety of the Order dated 23.05.2022:The petitioner challenged the rejection of their appeal by the Joint Commissioner of CT&GST, Cuttack-I Central Circle, on the grounds of non-submission of a certified copy of the impugned order within the stipulated period. The petitioner had filed the appeal on 21.04.2021 and deposited 10% of the disputed tax amount but failed to submit the certified copy of the order dated 20.01.2021. The Appellate Authority issued a notice on 13.05.2022, requiring submission of the certified copy within seven days. The petitioner obtained the certified copy on 21.05.2022 and attempted to submit it on 23.05.2022, but the appeal was rejected as the order had already been passed and uploaded on the GST portal.2. Compliance with Procedural Requirements:The petitioner argued that the Appellate Authority's hyper-technical approach rendered them remediless, as the Appellate Tribunal under Section 112 had not been constituted. The petitioner relied on the decision in Shree Jagannath Traders v. Commissioner of State Tax, Odisha, where the Court held that substantial compliance should be considered, especially during COVID-19 times. The Court noted that the petitioner had enclosed a copy of the impugned order available on the GST portal with the appeal memo, and the delay in submitting the certified copy should not have led to rejection of the appeal.3. Impact of COVID-19 Pandemic on Procedural Compliance:The Court acknowledged the challenges posed by the COVID-19 pandemic, including restricted functioning of courts and tribunals. It referred to various Supreme Court orders extending limitation periods due to the pandemic, highlighting that a liberal approach should be adopted in such times. The Court emphasized that the procedural requirement of submitting a certified copy within seven days should not override the merits of the case, especially when the petitioner had made substantial efforts to comply.4. Applicability of Section 5 of the Limitation Act, 1963:The Court examined whether the procedural requirement under Rule 108(3) of the OGST Rules excluded the applicability of Section 5 of the Limitation Act, 1963. It noted that Rule 108(3) did not expressly exclude the application of Section 5, and the procedural requirement should not lead to dismissal of the appeal on technical grounds. The Court cited the decision in Superintending Engineer Dehar Power House Circle Bhakra Beas Management Board v. Excise & Taxation Officer, where it was held that in the absence of specific exclusion, Section 5 of the Limitation Act applies.Conclusion:The Court set aside the impugned order dated 23.05.2022 and restored the appeal to the file of the Joint Commissioner of State Tax (Appeal), directing the petitioner to appear and submit the certified copy of the order dated 20.01.2021. The Appellate Authority was instructed to decide the appeal on merits, considering the procedural compliance in light of the COVID-19 pandemic and the principles of natural justice. The writ petition was allowed, emphasizing a liberal approach towards procedural compliance during the pandemic.