TaxTMI 
TaxTMI 
2023 (8) TMI 524
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.... 2. This petition is filed for the following prayers: "9(a) That this Hon'ble Court may be pleased to issue a writ of Mandamus or an appropriate writ, order or direction, ordering, directing or declaring the Ld. Assistant Commissioner to make available and upload the electronic copy of the OIO dated 23.08.2019, on the GST Portal for the purpose of filing appeal in accordance with Section 107 of the CGST Act, 2017 and Rule 108(1) of the CGST Rules, 2017. (AA) That this Hon'ble Court may be pleased to issue a Writ Petition of Mandamus or an appropriate writ in the nature of Mandamus or any other appropriate writ, order or direction, to quash and set aside the Impugned Order in Appeal passed by Ld. Commissioner (Appeals) to the extent it has held that the impugned order in original dated 23.08.2019 has attained the finality and denied the refund of unutilized input tax credit. (b) That this Hon'ble Court may be pleased to issue a writ of Mandamus or an appropriate writ in the nature of Mandamus or any other appropriate writ, order or direction ordering, directing or declaring the Ld. Assistant Commissioner to re-credit the rejected amount of refund claim to....
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....elief by issuing an appropriate Writ of Certiorari and Writ of Mandamus or an appropriate writ, order or direction under Article 226 of the Constitution of India, ordering and directing the respondent to release all bank accounts of the Petitioners as provided in Annexure-B, by way of quashing the letters of Respondent No. 3 dated 09.12.2022 and 12.12.2022. (b) That this Hon'ble Court may be pleased to grant an interim relief by issuing an appropriate Writ of Certiorari and Writ of Mandamus or an appropriate writ, order or direction under Article 226 of the Constitution of India, asking the Respondent No. 2 to upload the Impugned Order 29.04.2021 on GSTN Portal as is mandated under Section 107(1) of the CGST Act, 2017 read with Rule 108(1) of the CGST Rules, 2017. (c) That this Hon'ble Court may be pleased to grant an interim relief by issuing an appropriate Writ of Certiorari and Writ of Mandamus or an appropriate writ, order or direction under Article 226 of the Constitution of India, to quash and set aside the Impugned Orders passed by Respondent No. 2 and decide them afresh after according an opportunity of hearing. 5. The petitioners are partners in a part....
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....he original order been uploaded. (iii) In support of his submissions Mr. Mishra would extensively read out the provisions of Section 107 and Rule 108 of the CGST Act and the Rules. He would also press into service Rules 26(1) and 26(3) to submit that every order should be uploaded on the web portal. (iv) That there is no provision that even if an order is not uploaded, an appeal can be filed electronically on the web portal. Unless the order is uploaded under Rule 26 read with Rule 142 no appeal can be filed. (v) Relying on the recommendation of the GST Council in its 50th Meeting where a view was expressed to amend the Rule 108 to enable manual filing of the appeal, it is his submission that no appeal could have been filed except electronic mode and therefore because of the order having not been uploaded the appeal could not be filed. 6.1 In support of his submissions Mr. Mishra would rely on the following decisions: (I) M/s. Britannia Industries vs. Union Of India (SCANo. 15473 of 2019) (II) Gujarat State Petronet vs. Union Of India (SCANo. 15607 of 2019) (III) Jose Joseph vs. Assistant Commissioner of Central Tax and Central Excise & ors. [....
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....r has been filed on 28.7.2023 after the conclusion of arguments in the petition on 26.07.2023. (b) That the entire proceedings are in violation of principles of natural justice. (c) Invoking Section 107(7) of the Act, Mr. Mishra would submit that a suo motu stay would operate as the petitioner has paid the 10% of the amount as per the original order dated 29.04.2021. 9. For the Revenue, learned advocate Mr. Priyank Lodha would make the following submissions: (a) That two show cause notices were issued one dated 4.6.2020 for service tax liability and one dated 5.6.2020 for GST liability. Hearing was granted on 9.9.2020; 8.10.2020; 27.10.2020 and 23.12.2020, however, none of the partners appeared for any hearing and therefore the Orders-In-Original dated 31.3.2021 and 29.4.2021 were passed. (b) The orders were served on the partner Mr. Darpan Shah on 14.6.2021. He would rely on the provisions of Section 169(1)(a) of the Act and submit that in accordance with this section, the orders were communicated which did not prevent the petitioners from filing an appeal. (c) That as far as the GST order is concerned, the appeal had to be filed wit....
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....n of the Bombay High Court in the case of Meritas Hotels Pvt.Ltd v. State of Maharashtra and Ors. reported in (2022) 89 GST 453 (Bombay) where an order was communicated by email and the Court held that the submission of the petitioner that except for communication on the GSTN portal other communications are to be disregarded was fallacious and too far fetched. (j) That the limitation to file appeal commenced on the date the orders were physically served. The appeal in context of service tax matter is filed and was scheduled for hearing and was adjourned at the request of the appellant himself. 9.1 The Affidavit-in-Reply in Special Civil Application No. 4876 of 2023, relevant to the controversy is reproduced as under: "6. It is most respectfully submitted that two Show Cause Notices were issued by the DGGI, Regional Unit, Vadodara. In one case, Show Cause Notice No. DGGI/BRU/36-03/202021 dated 04.06.2020 was issued on the basis of investigation conducted by them, a demand was raised for non-payment of Service Tax liability on "Construction of Residential Complex Services", "Goods Transport Agency", Late fee for non-filing of Service Tax Returns for the Period of....
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....van/2021-22 dated 29.04.2021 Dues Paid till Date (Rs.) Differential amount to be paid (excluding Interest and Late Fee) (Rs.) GST Rs. 1,09,75,364/- + Rs. 52,142/- Tax U/Sec. 74(1) of CGST Act 2017 & 74(1) Gujarat GST Act 2017. Rs. 1,09,75,364/- + Rs. 52,142/- Penalty U/Sec 74(1) of CGST Act 2017 & 74(1) Gujarat GST Act 2017. Rs. 1,09,75,364/- + Rs. 52,142/- Penalty U/Sec 122(1) (xv) of CGST Act, 2017 & 122(1) (xvii) of Gujarat GST Act, 2017. Rs. 5,000/- Late Fee per return U/Sec 47(1) & 47(2) of CGST Act, 2017 & 47(1) and 47(2) of Gujarat GST Act 2017. Rs. 25,000/- Personal Penalty on Partner Shri Darpan Shah U/ s 122(3) (a) 122(3)(d) of CGST Act, 2017 & Sec. 122(3)(a) & 122(3)(d) of Gujarat GST Act 2017. 0 3,31,07,5 18/- (9) The department issued various letters dated 26.10.2021, 29.11.2021, 23.02.2022, 03.06.2022 and 14.10.2022 requesting the taxpayer either to pay up the govt dues or intimate about filing of Appeal, if any. However, inspite of receipt of these letters, no communication was received from the taxpayer. (10) The appeal period against above said order lapsed on 29.05.2022 in view of the Hon'ble Supreme Court Order dated 10.....
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.... under RCM and Late fee on non-filing of returns for the Period of July-2017 to March-2019. (15) The taxpayer was given the opportunity of Personal Hearing on 09.09.2020, 08.10.2020, 27.10.2020 and 23.12.2020 (ANNEXURE-I). However, inspite of receipt of Personal Hearing letters, the taxpayer failed to appear for personal hearing on any of the 4 dates given. Therefore, the said notices were adjudicated by the competent authority (Assistant Commissioner, Division-VII, CGST Vadodara-I) vide Order-in-Original No. GSTD-VII/VAD-I/AC/KDN/GST/04/S. Upvan/2020-21 dated 31.03.2021 (for the service tax matter) and Order-in-Original No. GSTD-VII/VAD-I/AC/KDN/GST/01/ S. Upvan/2021-22 dated 29.04.2021 (for the GST matter) after an ample time of almost 10 months after issuance of Show Cause Notices. As per the GST registration, Shri Darpan Shah is the only authorized signatory of the firm (ANNEXURE-II). Accordingly, these Order-in-Originals were delivered to Shri Darpan Shah, Authorized Signatory of the firm and Conoticee in the instant case on 14.06.2021 (ANNEXURE-III) which is a valid way of Serving the Order under Section 169(1)(a) of CGST Act, 2017 and Section 37C of the Central Exci....
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....RC-07 is an afterthought on part of the petitioner to avoid the recovery of clearly recoverable arrear due to the respondent. (17) The department issued various letters dated 26.10.2021, 29.11.2021, 23.02.2022, 03.06.2022 and 14.10.2022 (ANNEXURE-VI) requesting the taxpayer either to pay up the govt dues or intimate about filing of Appeal, if any. However, inspite of receipt of these letters, no communication was received from the taxpayer. (18) The taxpayer's claim that they were prevented from filing of appeal on the ground that they couldn't file APL-01 is totally baseless. The appeals are even accepted till date without that also in case of genuine grounds, technical issue faced by the taxpayer. However, the taxpayer neither intended to file an appeal until the recovery proceedings were initiated against them nor paid a single penny against the Service Tax and GST liability since April-2016. (19) As per Section 90 of the CGST Act, 2017 the firm and each of the partners of firm shall be jointly and severally, be liable for any dues. The relevant provision of the section is reproduced as below: "Section 90 of Central Goods and Services Act 2017....
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....2017 read with Section 87 of the Finance Act, 1994 to safeguard the govt revenue; requesting various authorities including Registrar of Companies, Sub Registrar, Income Tax, Mamlatdar Kacheri and Bank regarding the assets of the firm/all the partners vide letter dated 09.12.2022 and 12.12.2022. The relevant provision of the section 79 of the CGST Act, 2017 is reproduced as below: "Section 79 - Recovery of tax (1) Where any amount payable by a person to the Government under any of the provisions of this Act or the rules made thereunder is not paid, the proper officer shall proceed to recover the amount by one or more of the following modes, namely:-- (a) the proper officer may deduct or may require any other specified officer to deduct the amount so payable from any money owing to such person which may be under the control of the proper officer or such other specified officer; (b) the proper officer may recover or may require any other specified officer to recover the amount so payable by detaining and selling any goods belonging to such person which are under the control of the proper officer or such other specified officer; (c) (i) the ....
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....partners of the firm. However, the petitioner or any of the partners failed to pay a single penny of their respective share in last 5 months. (24) Section 79(1)(c) of the CGST Act, 2017 empowers the department to directly debit the amount lying in the bank account. However, the bank accounts were put on No-debit status for the purpose of protecting the govt revenue while the department gathers the whereabouts of assets related to the firm including the property, bank accounts, etc. Till the time department ascertains any available assets related to the firm, the department intended not to take harsh action against the petitioner by way of directly debiting from the partner's bank account in the form of DRC-13. (25) Further, Section 83 of CGST Act, 2017 is not at all mentioned in the letters issued to the Bank. So, the judgments mentioned by the petitioner quoting section 83 are completely irrelevant in the instant case. (26) The seized bank accounts are personal bank account and proprietorship firm related bank account. The Judgement of Hon'ble Karnataka High Court in Urban Heights v. Deputy Commissioner of Commercial Taxes (Audit Recovery), Bangalore men....
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....redit ledger. (2) Where any amount claimed as refund is rejected under rule 92, either fully or partly, the amount debited, to the extent of rejection, shall be re-credited to the electronic credit ledger by an order made in FORM GST PMT 03. Explanation.- For the purposes of this rule, a refund shall be deemed to be rejected, if the appeal is finally rejected or if the claimant gives an undertaking in writing to the proper officer that he shall not file an appeal." 11.3 Reading the Rule indicates that a refund can only be re-credited to the electronic ledger if an undertaking is provided by the claimant that he shall not file an appeal or the appeal filed is rejected. In the present facts, the petitioner's appeal was neither rejected, in other words not filed, nor had he given an undertaking, therefore in absence thereof, the request for re-credit of the refund, in the opinion of this Court, was rightly rejected. 12. That brings us to the main issue, which is common to all petitions i.e. were the petitioners prevented from filing their appeals through the electronic mode merely because the orders were not uploaded, when it is undisputed that the petitioners ....
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...., if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or six months, as the case may be, allow it to be presented within a further period of one month. (5) Every appeal under this section shall be in such form and shall be verified in such manner as may be prescribed. (6) No appeal shall be filed under sub-section (1), unless the appellant has paid- (a) in full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him; and (b) a sum equal to ten per cent. of the remaining amount of tax in dispute arising from the said order subject to a maximum of twenty-five crore rupees, in relation to which the appeal has been filed. 169 Service of notice in certain circumstances (1): Any decision, order, summons, notice or other communication under this Act or the rules made thereunder shall be served by any one of the following methods, namely: - (a) by giving or tendering it directly or by a messenger including a courier to the addressee or the taxable person or to his manager or authorise....
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....bsent from India or is mentally incapacitated from attending to his affairs, by any other adult member of such family or by the authorised signatory of such Karta; (c) in the case of a company, by the chief executive officer or authorised signatory thereof; (d) in the case of a Government or any Governmental agency or local authority, by an officer authorised in this behalf; (e) in the case of a firm, by any partner thereof, not being a minor or authorised signatory thereof; (f) in the case of any other association, by any member of the association or persons or authorised signatory thereof; (g) in the case of a trust, by the trustee or any trustee or authorised signatory thereof; or (h) in the case of any other person, by some person competent to act on his behalf, or by a person authorised in accordance with the provisions of section. (3) All notices, certificates and orders under the provisions of this Chapter shall be issued electronically by the proper officer or any other officer authorised to issue such notices or certificates or orders, through digital signature certificate specified under the provisions of the ....
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....ity has power if sufficient cause is shown that the appellant was prevented from filing an appeal within three months then it can allow a further period of three months. 13.2 Rule 108 provides that the appeal has to be filed in the form either electronically or otherwise as may be notified. That no other mode is notified and the only mode is an electronic mode is accepted. On 26.12.2022, sub-rule (3) as quoted above and provisos to the Rules were added, however, since the relevant dates in the present petitions is before 26.12.2022, the old sub rule (3) reads as under: "A certified copy of the decision or order appealed against shall be submitted within seven days of filing the appeal under sub-rule (1) and a final acknowledgement, indicating appeal number shall be issued thereafter in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf: Provided that where the certified copy of the decision or order is submitted within seven days from the date of filing the FORM GST APL-01, the date of filing of the appeal shall be the date of the issue of the provisional acknowledgement and where the said copy is submitted after seven days, the da....
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....o provision or procedure to file the appeal manually. In such circumstances, there was no failure on part of the petitioner to file the appeal within the prescribed period of limitation as the period of limitation did not start till the order passed by the adjudicating authority was uploaded on the GST portal. Merely because the petitioner has filed the appeal manually after exhausting all the efforts to ensure filing of the appeal in proper and legal manner, the impugned order rejecting such appeal on the ground of limitation is not sustainable as the petitioner cannot be penalised for lack of clarity of the provision when the new law is enacted. From the facts on record, it also emerges that the petitioner has taken all the steps for proper filing of the appeal immediately after issuance of the order passed by the adjudicating authority till the filing of the appeal. Therefore, the appellate authority was not justified in rejecting the appeal on the ground of limitation and thereby depriving the petitioner to submit its case on merits. 9. In view of above, taking into consideration the peculiar facts of the case, the impugned order passed by the appellate authority is re....
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....oad the order in the original, petitioner cannot be mulcted with the responsibility of preferring appeals within the time period stipulated. The time period stipulated in the statute for filing an appeal is part of the same transaction that exists with the uploading of an order in the original. 10. When the mode of appeal prescribed by Rules is only the electronic mode, the time limit of three months can start only when the assessee had the opportunity to file the appeal in the electronic mode. The assessee cannot be blamed if he waited for the order to be uploaded to the web portal, even if he had in the meantime received the physical copy of the order. The reliance upon Annexure R1(c) circular have no bearing on the case of the assessee as the same is at the most only an internal communication and not made known to the public and cannot be treated as a notification contemplated under Rule 108(1) of the Rules. 11. In this context, it is appropriate to notice that there is no provision for filing an appeal manually. In the absence of such a provision, even though the petitioner has preferred appeals in the manual form subsequently, the same cannot work out as a pr....
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....xhausting all the efforts to ensure filing of the appeal and proper and legal manner, the impugned order rejecting such appeal on the ground of limitation is not sustainable the petitioner cannot be penalised for lack of clarity of the provision in the new law is enacted." 14. I concur wholly with the aforesaid observations in the said judgment. 15. Hence, I am of the view that the petitioner is entitled to have his appeals that were filed manually, to be treated as having been filed within time, in the light of the failure of the department to upload Ext.P1 order in the web portal. Therefore, Ext.P3 order passed by the 2nd respondent in all these writ petitions are set aside and the 2nd respondent is directed to treat the appeals as filed within time and thereafter, to pass final orders in the appeals on merits, after affording sufficient opportunity of hearing to the petitioner. The writ petitions are allowed as above" 14.3 Here too, the order was served manually and the appeal was filed manually and therefore the Court observed that the only mode available is of filing the appeal electronically which can be availed of only when order is uploaded. Th....
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....7 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 subsection (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 :- "108 (1) An appeal to the Appellate Authority under subsection (1) of section 107 shall be filed in FORM GST APL 01, along with the rele....
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....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 subrule (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 requirement that the certified copy of the decision of the appeal is to be submitted, for the....
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....tution 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 uncondonable 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 exercise of its plenary powers under Article 142 of the Constitution, it is unfathom....
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....g 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 express and unambiguous language of sub-....
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....ed 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 entertain ....