TaxTMI 
TaxTMI 
2021 (12) TMI 376
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....ling the GST returns for the month of February 2019 on account of financial crunches. The petitioner could not file the tax payable return on the GSTN portal as the GSTN portal did not allow filing of the return tax. A notice dated March 26, 2019 was issued by the respondent no.4 upon the petitioner for non-filing of the return for the month of February 2019. The impugned summary assessment order dated April 20, 2019 in Form GST ASMT-13 under section 62 of the MGST Act, 2017 fixing the liability of tax amount of Rs. 20,96,888/- along with interest of Rs. 32,502/- and penalty of Rs. 23,06,577/- was made. The physical true copy of the assessment order dated April 20, 2019 was not served on the petitioner nor was the same uploaded on the GSTN portal. The scanned copy of the impugned assessment order dated April, 20, 2019 was sent by email dated April 20, 2019 to the General Manager of the petitioner company. This email communication remained to be reported by the General Manager to the management of the petitioner company. The petitioner filed GSTR-3B for the month of February 2019 on June 14, 2019 on the basis of actual books of accounts. At the time of filing of the GSTR- 3B for the....
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.... the respondent no.4- Deputy Commissioner. It is thus the contention of learned counsel for the petitioner that the appeal filed was well within limitation. In the alternative, it is the contention of learned counsel for the petitioner that despite existence of the remedy of a statutory appeal, it is open for the petitioner to challenge the impugned assessment order by way of a writ petition under Article 226 of the Constitution of India, as the same is passed in complete breach of the principles of the natural justice without affording any opportunity to the petitioner to contest the tax liability. Learned counsel relied upon the decision of the Gujarat High Court in the case of Gujarat Tate Petronet Limited Vs. Union of India 2020-VIL-426-GUJ in support of his submission. 4. Learned AGP appearing on behalf of Respondent nos.1, 3 to 5, on the other hand, supported the action on the part of the respondent no.5 in refusing to accept and entertain the appeal on account of the mandate of subsection (1) and (4) of Section 107 of the said Act. Learned AGP submitted that admittedly the scanned copy of the impugned assessment order dated April 20, 2019 having been sent by email to the pe....
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....refer to the relevant provisions of the said Act. As the impugned assessment order is passed under Section 62 of the said Act, sub-section (1) of Section 62 which has some relevance is reproduced, which reads thus :- "62(1) Notwithstanding anything to the contrary contained in section 73 or section 74, where a registered person fails to furnish the return under section 39 or section 45, even after the service of a notice under section 46, the proper officer may proceed to assess the tax liability of the said person to the best of his judgment taking into account all the relevant material which is available or which he has gathered and issue an assessment order within a period of five years from the date specified under section 44 for furnishing of the annual return for the financial year to which the tax not paid relates." 7. Sub-section (1) of Section 107 of the said Act provides that any person aggrieved by an order passed under Section 62(1) of the said Act may appeal to the appellate authority (in the present case the appellate authority being the respondent no.5) within the period of 30 days from the date of communication of the order. The relevant provisions of Section 107....
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....ving to be strictly fulfilled. 9. The submission of learned counsel for the petitioner that the limitation prescribed by sub-section (1) of Section 107 of the said Act will commence from the date when the impugned assessment order is uploaded on the GSTN portal is in the teeth of the provision of sub-section (1) of Section 107 of the said Act which prescribes filing of an appeal within three months from the date on which the said decision or order is communicated to such person. It is well settled that the Court cannot add or subtract the words to a statute or read something into it which is not there. This is precisely what learned counsel for the petitioner wants us to do. The submission of learned counsel for the petitioner that except for communication of the impugned assessment order on the GSTN portal, all other communications are to be disregarded for the purpose of sub-section (1) of Section 107 of the said Act, is fallacious and too far fetched. 10. We may then take a note of Chapter XIII of the Maharashtra Goods and Services Tax Rules, 2017 (hereafter "the Rules" for short) which deals with appeals and revisions. Sub-rule (1), (2) and (3) of Rule 108 reads as under :- ....
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.... in Form GST APL-01, along with the relevant documents, either electronically or as notified by the Commissioner. Sub-rule (3) provides that a certified copy of the decision or order appealed against shall be submitted within seven days of filing the appeal under sub-rule (1). The proviso to sub-rule (3) prescribes that the certified copy of the decision or order if submitted within seven days from the filing of the Form GST APL-01, the date of filing of the appeal shall be the date of the issue of the provisional acknowledgment and where the said copy is submitted after seven days, the date of filing of the appeal shall be the date of submission of such copy. It is also relevant to refer to the explanation under sub-rule (3) which provides that for the provisions of Rule 108, the appeal shall be treated as filed only when the final acknowledgment, indicating the appeal number, is issued. Rule 108 no doubt prescribes that the appeal has to be filed electronically, but it no where prescribes that the same is to be filed only after impugned assessment order is uploaded on GSTN portal online. On the contrary, at the time of filing the appeal electronically, it is not even the requirem....
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....2010) 5 SCC 23, lays down quite clearly that the policy behind the Act emphasising on the constitution of a special adjudicatory forum, is meant to expeditiously decide the grievances of a person who may be aggrieved by an order of the adjudicatory officer or by an appropriate Commission. The Act is a special legislation within the meaning of Section 29(2) of the Limitation Act and, therefore, the prescription with regard to the limitation has to be the binding effect and the same has to be followed regard being had to its mandatory nature. To put it in a different way, the prescription of limitation in a case of present nature, when the statute commands that this Court may condone the further delay not beyond 60 days, it would come within the ambit and sweep of the provisions and policy of legislation. It is equivalent to Section 3 of the Limitation Act. Therefore, it is un-condonable and it cannot be condoned taking recourse to Article 142 of the Constitution." 14. We may then refer to paragraph 21 of the decision in Assistant Commissioner (CT) LTU, Kakinada (supra) which reads thus :- "21. A priori, we have no hesitation in taking the view that what this Court cannot do in ex....
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....me gives a special and particular remedy for enforcing it.... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. (1919 AC 368) and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant & Co. Ltd. (1935 AC 532) and Secretary of State v. Mask & Co. (AIR 1940 PC 105). It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine." 16. In the present case, having regard to the express provisions of sub-Section (1) and (4) of Section 107 of the said Act, we have no manner of doubt, that for the purpose of limitation, the date of communication of the impugned assessment order is to be regarded as April 20, 2019 viz the date on which the order was sent by email to the petitioner. In the facts of this case, having regard to the ex....
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.... Act. It is pointed out that the petitioner did not file an appeal because the Collector (Appeal) at Madras had taken a view in a similar matter that an appeal was not maintainable. That apart, the petitioner in view of the huge demand involved filed a writ petition and so did not file an appeal. In the circumstances of the case, we are of the opinion that the ends of justice will be met if we permit the petitioner to file a belated appeal within one month from today with an application for condonation of delay, whereon the appeal may be entertained. Learned counsel for the Revenue has stated before us that the Revenue will not object to the entertainment of the appeal on the ground that it is barred by time. In view of this direction and concession, the petitioner will have an effective alternative remedy by way of an appeal. (emphasis supplied) 25. In that case, it appears that the writ petition was filed within statutory period and legal remedy was being pursued in good faith by the assessee (appellant). 26. Suffice it to observe that this decision is on the facts of that case and cannot be cited as a precedent in support of an argument that the High Court is free to....