2023 (10) TMI 1289 - HC - GST

Tax Appeal Dispute: Petitioner Challenges Dismissal, Secures Interim Relief with 50% Deposit Under GST Act Section 169

HC found merit in petitioner's challenge to appeal dismissal based on limitation. The court directed respondents to file counter affidavit regarding ... Communication of order - service of order - deemed service - service by making available on common portal - limitation for filing appeal - interim stay of coercive action on deposit - direction to file counter-affidavitInterim stay of coercive action on deposit - communication of order - Grant of interim protection against coercive action pursuant to the impugned order. - HELD THAT: - The Court granted an interim injunction restraining coercive action under the impugned order dated 03.12.2021 on the condition that the petitioner deposits 50% of the disputed tax amount in accordance with law within two weeks. The order further provides that any amount already deposited by the petitioner shall be adjusted against the deposit required by this order. This relief is interlocutory and conditional, intended to preserve the petitioner's position pending further proceedings. [Paras 8, 9]No coercive action shall be taken against the petitioner pursuant to the impugned order provided the petitioner deposits 50% of the disputed tax amount within two weeks; earlier deposits to be adjusted.Deemed service - service by making available on common portal - communication of order - limitation for filing appeal - direction to file counter-affidavit - Requirement for respondents to explain and justify the mode and date of communication/service of the impugned order and to address the question whether service by making available on the portal amounts to deemed service under the statute. - HELD THAT: - The Court has not adjudicated the substantive controversy on limitation or on whether availability on the portal constitutes communication or deemed service. Instead, it directed the respondents to file a counter-affidavit within four weeks specifically averring how and in what manner clauses (c) and (d) of sub-section (1) of section 169 can be equated with deemed service under sub-section (2) of section 169 of the GST Act. The matter is listed for further consideration, signalling that the factual and legal question of when the order was communicated/served requires fresh response and determination by the authority/court. [Paras 5, 6]Respondents to file counter-affidavit within four weeks addressing the mode/date of communication and the legal basis for deeming service by portal; matter listed for further hearing.Final Conclusion: The petition raises a contested question on whether the impugned order was communicated or deemed served; the Court has not decided that question on merits but has directed the respondents to file a specific counter-affidavit and has granted conditional interim protection against coercive action subject to deposit of 50% of the disputed tax amount. Issues involved:The issue involves challenging an order dismissing an appeal on the ground of limitation due to the date of communication being considered as the date of the order under challenge.Summary:The petitioner filed a writ petition challenging the dismissal of their appeal based on the order dated 31.05.2023, deemed to be communicated on the same date. The petitioner argued that the order dated 03.12.2021 was not communicated or served upon them. The petitioner contended that mere availability of the order on the portal does not constitute communication, as per the provisions of section 169 of the GST Act. The petitioner highlighted the distinction between 'communicated' and 'served' as used in different sections of the GST Act. The petitioner asserted that the appeal filed on 13/14.04.2023 was within the limitation period, as the date of communication was 22.03.2023, when they first became aware of the order dated 03.12.2021. The court found the matter deserving consideration and directed the respondents to file a counter affidavit explaining the deeming service under specific clauses of section 169 of the GST Act. The case was scheduled for further hearing on 11.09.2023, with a stay on coercive actions against the petitioner if 50% of the disputed tax amount was deposited within two weeks, allowing adjustment of any previous deposits.