2026 (2) TMI 1390 - HC - GST

Knowledge of order: non upload of Form DRC 07 can delay commencement of limitation, so appellate dismissal was set aside.

Appellate authority's dismissal as time-barred was unsustainable because it failed to consider the appellant's contention that the summary demand (Form ... Mandatory requirement of Form GST DRC-07 - condonation of delay u/s 107(4) - appellate authority's duty to consider grounds raised in the memo of appeal - HELD THAT:- It is not in issue that on 01.08.2022, the order in original came to be passed by the Adjudicating Authority and an appeal stands provided under Section 107 of the UPGST/CGST Act, 2017. The period of limitation of preferring an appeal is three months with a grace period of one month totalling to four months. Notably, the order in original came to be passed on 01.08.2022. The appeal was preferred by the writ petitioner on 03/09.01.2023. According to the writ petitioner the delay is being sought to be condoned on the pretext that the Form GST DRC-07 happens to be a mandatory requirement for filing of the appeal. A copy of the application dated 26.11.2022 requesting for uploading of the Form GST DRC-07 has also been appended at 59/60 of the paper book. The said contention so raised by the writ petitioner has not been considered while deciding the appeal and rejecting the same. In the opinion of the Court, once a ground is taken in a memo of appeal, then the Appellate Authority is to consider the said ground. Might be the same may be accepted or rejected. Since the grounds taken by the writ petitioner for condonation of the delay have not been adverted to in correct perspective, thus the appellate order cannot be sustained. The order dated 21.07.2023 passed by the Addl. Commissioner, Grade-2 Appeal-2 Commercial Tax, Noida is set aside. Issues: Whether the appellate authority erred in rejecting the appeal as time-barred under Section 107 of the UPGST/CGST Act, 2017 without properly considering the plea that the summary demand order in Form GST DRC-07 was uploaded only on 26.11.2022 and that the limitation for filing the appeal should run from that date.Analysis: The Court noted that the original adjudication order was dated 01.08.2022 and that an appeal under Section 107 (three months plus one month grace) was required to be filed within four months. The memo of appeal raised as a substantive ground that the summary demand order in Form GST DRC-07 had not been uploaded until 26.11.2022 and that the appellant sought upload and received the form on that date. The appellate authority rejected the appeal solely on the ground of delay without addressing this contention or applying mind to whether the availability of the Form GST DRC-07 on the portal affected the date of service/knowledge and thus the running of limitation. The Court referred to the coordinate decision holding that Rule 142(5) and the declaration/upload of Form DRC-07 is a mandatory requirement affecting knowledge of the order. Because the ground raised in the appeal about non-availability/upload of Form GST DRC-07 was not considered on merits, the appellate order was unsustainable.Conclusion: The appellate order dated 21.07.2023 is set aside and the matter is remitted to the appellate authority to decide the delay condonation application strictly in accordance with law within two months from production of certified copy of the order.