2023 (10) TMI 1332 - HC - GST

Petitioner can file delayed appeal against excess input tax credit order with condonation application until January 2024

M/s. M Group Versus Assistant Commissioner Of State Tax

Gujarat HC disposed of petition regarding delay in filing appeal against excess input tax credit order. Court held petitioner can file appeal with ... Petition to be entertained for the purposes of condoning the delay in filing the appeal or not - Excess Input Tax Credit claimed - order passed without opportunity of being heard - violation of principles of natural justice - HELD THAT:- It will be open for the petitioner to file an appeal with an application for condonation of delay in filing such appeal explaining the circumstances which are available to suggest to the appellate authority that the petitioner was prevented by way of a sufficient cause in filing such an appeal. This is observed in light of the recommendations of the 52nd GST council which so as to facilitate measures of trade has opined that the time period for filing appeals under Section 107 will be allowed in case such appeals are filed against orders which have been passed on or before 31.03.2023 up to 31.01.2024. As far as the counsel’s submissions that the appellate authority will not be in a position to undertake exercise of remedy in light of sub-section 11 of section 107 of the Act, while filing an application for condonation of delay, the applicant – petitioner can suggest in what manner there has been a violation of principles of natural justice in light of the fact that while issuing notice on 03.12.2021, the assessment order indicates a discrepancy in figures inasmuch as the show-cause notice initially under DRC-01 indicated a figure of Rs. 46,85,584/- whereas the assessment order indicates discrepancy of Rs. 35,02,643/- whereas in the final order again a figure of Rs. 46,91,684/- is indicated. All these circumstances shall be taken into consideration by the appellate authority in the application for condonation of delay which otherwise can be decided in accordance with law. The petition is disposed of. Issues involved: Challenge to order under Section 73 of the GST Act for excess input tax credit claimed.Summary:Issue 1: Challenge to order under Section 73 of the GST ActThe petitioner, a partnership firm engaged in manpower services, challenged an order dated 06.04.2022 under Section 73 of the GST Act for claiming excess input tax credit. The petitioner received a notice in Form ASMT-10 under section 61 of the Act for financial year 2018-19, followed by a show-cause notice under Section 73 for claiming Rs. 46,85,584/- excess input tax credit. The petitioner contended that the order was passed without giving an opportunity of hearing, violating principles of natural justice. The petitioner cited a court decision suggesting that orders passed without an opportunity of hearing should be set aside for a fresh hearing. The respondent relied on a decision regarding the maintainability of petitions under Article 226 of the Constitution of India. The court noted that the petitioner could have filed an appeal but chose not to do so, and recommended filing an appeal with an application for condonation of delay as per the 52nd GST Council recommendations.Issue 2: Remedy for violation of natural justiceThe court observed that even if there was a violation of natural justice, the petitioner had the remedy of filing an appeal but did not do so. The court referred to a decision stating that jurisdiction under Article 226 cannot be exercised to condone a time-barred appeal. The court suggested that the petitioner can file an appeal with an application for condonation of delay, explaining the circumstances preventing timely filing. The court highlighted the GST Council's recommendations for an amnesty scheme for filing appeals against demand orders, allowing appeals until 31.01.2024 for orders passed on or before 31.03.2023.Conclusion:The petition was disposed of with the court clarifying that it did not delve into the merits of the matter. The appellate authority was advised to consider the aspects raised in the petition, the court's observations, and the GST Council recommendations while deciding on the application for condonation of delay.