AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2022 (7) TMI 130
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....y No.2) to entertain the appeal on merit. 3. The Petitioner, M/s. ATLAS PVC PIPES LIMITED, a Company incorporated under the provisions of the Companies Act, 1956, deals in supply of pipes. It claims to have participated in the proceeding under Section 74 of the OGST Act. Ultimately, the CT&GST Officer of Cuttack-I Central Circle-Opposite Party No.3 by order dated 20.01.2021 raised a demand to the tune of Rs.8,20,042/- (comprising tax of Rs.3,99,630/-, interest of Rs.53,212/- and penalty of Rs.3,67,200/-) pertaining to the tax periods from 1st April, 2019 to 31st March, 2020. Being aggrieved, on 21.04.2021 the Petitioner filed an appeal under Section 107 of the OGST Act. It is asserted by the Petitioner that in order to comply with the condition for filing of the appeal, although it deposited an amount of Rs.39,964/- being 10% of the tax in dispute in terms of sub-section (6) of Section 107, but could not submit the certified copy of the impugned order along with the appeal memo. 3.1. It is submitted by Mr. Singh, learned Advocate for the Petitioner that in addition to filing of the appeal by electronic mode, self-attested hardcopies of the documents including copy of the impugned....
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....the Petitioner was required to furnish the certified copy of the impugned order dated 20.01.2021 within seven days of filing of said appeal in terms of sub-rule (3) of Rule 108 of the OGST Rules. As is apparent from the contents of the writ petition, the Petitioner took step to obtain certified copy only on 21.05.2022, i.e., the last date for complying with the direction contained in the notice dated 13.05.2022. It is, therefore, urged by Mr. Mishra that in such view of the matter, the Appellate Authority has committed no illegality in passing the impugned order rejecting the appeal, after adhering to the principles of natural justice by affording opportunity specifying date for compliance. Mr. Mishra further submitted that the requirement of sub-rule (3) of Rule 108 remained unsatisfied for more than one year of the filing of appeal, and as a consequence therefor, the matter does not warrant indulgence. 5. Fact available on record reveals that copy of the impugned order as made available to the Petitioner formed part of the Memo of Appeal. It is also apparent from the pleading that the Petitioner had only one day left for compliance from the date of service of the said notice. Ac....
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....ty to the appellant of being heard. (9) The Appellate Authority may, if sufficient cause is shown at any stage of hearing of an appeal, grant time to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (10) * * * (11) * * * (12) The order of the Appellate Authority disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for such decision. (13) The Appellate Authority shall, where it is possible to do so, hear and decide every appeal within a period of one year from the date on which it is filed: Provided that where the issuance of order is stayed by an order of a court or Tribunal, the period of such stay shall be excluded in computing the period of one year. (14) On disposal of the appeal, the Appellate Authority shall communicate the order passed by it to the appellant, respondent and to the adjudicating authority. (15) A copy of the order passed by the Appellate Authority shall also be sent to the Commissioner or the authority designate....
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.... appeal as required under Section 107. 6.2. Accepting notice on behalf of the Opposite Parties, namely the Commissioner of CT&GST, the Joint Commissioner of State Tax (Appeal), CT&GST Territorial Range, Cuttack-I and CT&GST Officer, Cuttack-I Central Circle, Mr. Mishra, learned Additional Standing Counsel, therefore, has made fair admission of the fact that the defect as pointed out by the CT&GST Organisation, being technical, the pedantic reason ascribed by the Appellate Authority cannot be countenanced on the face of decision of this Court vide Order dated 07.06.2021 rendered in the case of Shree Jagannath Traders Vrs. Commissioner of State Tax, Odisha, Cuttack, (W.P.(C) No.15061 of 202)1, wherein identical issue as that of the present case fell for consideration. This Court framed the following question for adjudication: "The short point for determination in the present writ petition is whether the Appellate Authority under the OGST Act, 2017, was justified in dismissing the Petitioner's appeal, by the impugned order dated 10th March, 2021, on the grounds that the appeal was not presented within the time prescribed under law?" 6.3. Answering the said question in the negative....
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....ade the following observation: "* * * 8. From the above narration of facts, it is apparent that the period of three months from the date of communication of order sought to be appealed against got lapsed during period when the effect of COVID-19 virus was at its peak. Noteworthy here to refresh that the lock-down was imposed on 24.03.2020 and there was impediment for the petitioner to file the appeal on or before 05.06.2020. 9. The Hon'ble Supreme Court of India In re: Cognizance for Extension of Limitation, Suo Motu Writ Petition (Civil) No. 3/2020 [2020 SCC OnLine SC 343 = (2020) 19 SCC 10] vide Order dated 23.03.2020 considering the challenge faced by the country on account of COVID-19 Virus and resultant difficulties that would be faced by litigants across the country in filing their petitions/applications/ suits/ appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Law (both Central and/or State), directed as follows: "To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including....
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....urt extended the period of limitation in all proceedings before the Courts/Tribunals including this Court w.e.f 15.03.2020 till 02.10.2021. 4. The present Miscellaneous Application has been filed by the Supreme Court Advocates-on-Record Association in the context of the spread of the new variant of the COVID-19 and the drastic surge in the number of COVID cases country. Considering the prevailing conditions, the applicants are seeking the following: i. allow the present application by restoring the order dated 23.03.2020 passed by this Hon'ble Court in Suo Motu Writ Petition (C) No. 3 of 2020; and ii. allow the present application by restoring the order dated 27.04.2021 passed by this Hon'ble Court in M.A. No. 665 of 2021 in Suo Motu Writ Petition (C) No. 3 of 2020; and iii. pass such other order or orders as this Hon'ble Court may deem fit and proper. 5. Taking into consideration the arguments advanced by learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of the M.A. No.21 of 2022 with the following directions: I. The order dated 23.03.2020 is rest....
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.... Gopalan [Mukri Gopalan Vrs. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5], a situation wherein a period of limitation is prescribed by a special or local law for an application of review and for which no provision is made in the Schedule to the Act, the second condition for attracting Section 29(2) of the Act is attracted. From the enunciation of law laid down in Mukri Gopalan (supra), it must be held that in view of Section 29(2) of the Limitation Act, the Tribunal has the jurisdiction to entertain and dispose of the application under Section 5 of the Limitation Act, since applicability of Section 5 of the Limitation Act has not been expressly excluded thereby." 6.10. It may be pertinent to refer to a decision of the Hon'ble Supreme Court in the case of Superintending Engineer Dehar Power House Circle Bhakra Beas Management Board v. Excise & Taxation Officer, (2020) 17 SCC 692 = 2019 SCC OnLine SC 1400 wherein the context of absence of specific provision contained in the special or local law excluding applicability of Section 5 of the Limitation Act, 1963, has been discussed and the said Hon'ble Court held as follows: "29. The High Court has relied upon the decision of t....
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....ocedural requirement. 6.13. On the altar of default in compliance of such a procedural requirement, merit of the matter in appeal should not have been sacrificed. Since the Petitioner has enclosed the copy of impugned order as made available to it in the GST portal while filing the Memo of Appeal, non-submission of certified copy, as has rightly been conceded by the Additional Standing Counsel appearing on behalf of CT&GST Organisation, is to be treated as mere technical defect. 6.14. Keeping in view the concern and context reflected in the Judgments, amendments to the statute and executive instruction/clarification during the COVID-19 pandemic period, and the decisions rendered by the Courts as referred to above, it is apt to say that the Appellate Authority has not exercised its power in proper perspective and the Petitioner cannot be said to be indolent, rather he it has pursued its matter diligently. 6.15. In view of the above, the writ petition deserves to succeed. 7. In the above perspective, the impugned Order dated 23.05.2022 contained in Form GST APL-02 vide Annexure-5 issued by the Joint Commissioner of State Tax (Appeal), CT&GST Territorial Range, Cuttack-I, Cuttack ....