TaxTMI 
TaxTMI 
2023 (8) TMI 524
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....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 the Electronic Credit Ledger of the Petitioner in accordance with Rule 93 of the CGST Rules, ....
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....n 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 partnership firm M/S Sukhdham Upvan formed for a real estate scheme. The shares are 11% and 4% respectively. That one Darpan Shah is ....
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....nd 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. [W.P.(c) Nos. 8960, 8966, 8977 & 9052 of 2021] (IV) M/s. Garden Silk Mills Ltd. vs. Union of India (SCA No. 7397 of 2018) 6.2 Mr. Mishra, learned advocate for the pet....
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.... 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 within three months from the date it was communicated. The appeal period lapsed on 29.05.2022 in light of the order of the Supreme Court on extension of limitation and therefore the dues became recoverable on and from 30.05.2022. (d....
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....STN 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 April-2015 to June 2017. The SCN dated 04.06.2020 was issued only to the partnership firm M/s Sukhdham Upvan, Waghodia Road, Vadodara. 7. Another Show Cause Notice No. DGGI/SZU/36-10/202021 dated 05.06.2020 was issued on the basis of investigation conducted by them and raised a demand ....
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....rat 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 10.01.2022. Thus, the said dues became recoverable arrears from 30.05.2022. Accordingly, the Superintendent, Range-II, Division-VII, CGST & C.E., Vadodara-I vide letter dated 09.12.2022 and 12.12.2022 requested the Bank to debit-freeze all the bank accounts of the defaulting firm and partners of the defaulting firm. (11) In the present case, S....
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.... 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 Excise Act, 1944. The relevant provision of the section 169(1) (a) of CGST Act, 2017 is reproduced as below: "169. Service of notice in certain circumstances 169. (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 o....
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....he 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 - Liability of Partners of firm to pay tax: Notwithstanding any contract to the contrary and any other law for the time being in force, where any firm is liable to pay any tax, interest or penalty under this Act, the firm and each of the partners of the firm shall, jointly and severally, be liable for such payment: Provided that where any partner retires from the firm, he or the firm, shall intimate the date of retirement of the said partner to the Commissioner by a notice ....
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....les 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 proper officer may, by a notice in writing, require any other person from whom money is due or may become due to such person or who holds or may subsequently hold money for or on account of such person, to pay to the Government either forthwith upon the money becoming due or being held, or within the time specified in the notice not being before the money becomes due or is held, so much of the money as is sufficient to pay the amount due from such person or the whole of the money when it is equal to or less than that amount; ...............................
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....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 mentions the presence of common partner in two firms whereas in the instant case the petitioner is partner in one firm only, not in other firm whose bank accounts are put on "No-debit" status. Hence, the same is not applicable to the present case." 10. Having considered the submissions made by the respective advocates in the three petitions, what this Court needs to decide, despite the factual issues which are not similar, is whether the petitioners' contention that they were handicapped in filing the appeal, which can only be filed through electronic mode, in absence of uploading of the Orders-In-Original, is an acceptable stand o....
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....eal 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 otherwise were communicated the orders and had received the same manually. 13. The relevant provisions as far as necessary for the decision in these petitions are Section 37C of the Central Excise Act, 1944 and Sections 107(1) to (6), 169 of the CGST Act and Rule 26(2)(3) and Rule 108 of the Rules. They read as under: Section 37C Service of decisions, orders, summons, etc.- (1) Any decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be served,- (a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgement due, to the person for whom it is intended or his auth....
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....pees, 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 authorised representative or an advocate or a tax practitioner holding authority to appear in the proceedings on behalf of the taxable person or to a person regularly employed by him in connection with the business, or to any adult member of family residing with the taxable person; or (b) by registered post or speed post or courier with acknowledgement due, to the person for whom it is intended or his authorised representative, if any, at his last known place of business or residence; or (c) by sending a communication to his email address provided at the time of registration or as amended from time to time; or (d) by making it available on the common portal; or (e) by publication in a newspaper circulating in the locality in which the taxable person or the person to w....
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.... (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 Information Technology Act, 2000 (21 of 2000) [or through E-signature as specified under the provisions of the Information Technology Act, 2000 (21 of 2000) or verified by any other mode of signature or verification as notified by the Board in this behalf]. Rule 108 Appeal to the Appellate Authority.- (1) An appeal to the Appellate Authority under sub-section (1) of section 107 shall be filed in FORM GST APL-01, along with the relevant documents, either electronically or otherwise as may be notified by the Commissioner, and a provisional acknowledgement shall be issued to the appellant immediately. (2) The grounds of appeal and the form of verification as contained in FORM GST APL-01 shall be signed in the manner specified in rule 26. (3) [Where the decision or order appealed against is uploaded on the common portal, a final acknowledgment, indicating appeal number, shall be issued in FORM....
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....mitted 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 date of filing of the appeal shall be the date of the submission of such copy." 13.3 Section 169 talks about service of notice in certain circumstances. Reading the Section indicates that any decision or order shall be served by giving or tendering it directly or by a messenger including a courier to the addressee of the taxable person. Section 37C also provides that any decision shall be served by tendering the same to the person to whom it is intended to be so served. 13.4 The orders dated 31.3.2021 and 29.4.2021 were served on the partner on 14.06.2021 and an acknowledgement to that effect has also been produced by the deponent of the affidavit in reply as far as the Special Civil Applications No. 4876 and 5731 of 2023 are concerned. Whereas in Special Civil Application NO. 14867 of 2022, the petitioner admits that the order dated 23.08.2019 was served manually. Even in the case of partners, letters were written on several dates to pay up the dues or in....
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....ion 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 required to be quashed and set aside by condoning the delay in filing of the appeal manually by the petitioner in absence of availability of the order passed by the adjudicating authority on the GST portal." 14.1 Reading the judgement indicates that firstly the order was not uploaded and that there were technical glitches so also appeal could not be filed. The order was served manually. The only question that the Court decided is whether the limitation would begin to run from the date of service of the manual copy of the order or the uploaded one. The court therefore was only considering the question of counting of limitation in filing the Appeal. Moreover, as observed in Para 9 of the judgement, the order was so passed taking into consideration the peculiar facts of the case. 14.2 Even in the case of Jose Joseph (supra), the only question that was considered was when should the limitation start running. Paras 8 to 15 of the judgement read as under: "8. It is the admitted c....
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.... 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 prejudice to the petitioner to apply the period of limitation from the date of serving of physical copy of the order. 12. Cases of this nature are occurring on account of the transition phase brought in by the new regime of GST and technical glitches that are occurring in the transition phase. In such circumstances, a different approach is required, especially since the electronic mode of uploading the order and the electronic filing of appeal had not attained its technical perfection, at least till the recent past. 13. In a similar instance, the High Court of Gujarat, while considering Gujarat State Petronet Limited v. Union of India (2020 (41) G.S.T.L. 442) had by judgment dated 05.03.2020 set aside the order of the Appellate Authority, and ordered the delay to be condoned in preferring the appeal manually and remanded the matter back for fresh consideration of the appeal. The observations of the Court are relevant in this context: "8. On a perusal of the above provisions, it is apparent that the app....
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....rt observed that the only mode available is of filing the appeal electronically which can be availed of only when order is uploaded. The judgement cannot be read to mean that no appeal can be filed at all unless the order is uploaded. The purpose of the judgements are only to consider the question of limitation. 14.4 The Bombay High Court recently had an occasion to consider this issue in the case of Meritas Hotel (supra). The point for consideration was whether in the facts of the case the period of limitation for the purpose of filing the appeal under Section 107 of the Act would commence from the date of service upon the petitioner of the scanned copy or from the date of uploading. The Bombay High Court in paras 8 to 16 which are reproduced held as under: "8. A reading of sub-section (1) of Section 107 of the said Act indicates that from the date of communication of the impugned assessment order passed by the adjudicating authority, the appeal to the appellate authority has to be filed within three months. In the present case, the impugned assessment order passed by the respondent no. 4 was communicated by email to the General Manager of the petitioner on April 20, 2019. It i....
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....late Authority under subsection (1) of section 107 shall be filed in FORM GST APL 01, along with the relevant documents, either electronically or otherwise as may be notified by the Commissioner, and a provisional acknowledgement shall be issued to the appellant immediately. (2) The grounds of appeal and the form of verification as contained in FORM GST APL 01 shall be signed in the manner specified in rule 26. (3) A certified copy of the decision ororder 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 acknowledgment and where the said copy is submitted after seven days, the date of filing of the appeal shall be the date of the submission of such copy. Explanation.- For the provisions of this rule, the appeal shall be treated as filed onl....
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....f the decision of the appeal is to be submitted, for the certified copy of the impugned assessment order can be submitted within seven days of filing the appeal. The proviso to sub-rule (3) of Rule 108 stipulates the consequence of filing the certified copy within seven days and also the consequence of filing the certified copy after seven days from the date of filing of appeal. 13. We may also note the statutory command by the legislation as regards limitation and there is the postulate that the delay can be condoned for a further period of one month, subject to the satisfaction of the appellate authority that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months prescribed by subsection (1) of Section 107 of the said Act. It needs to be emphasized that the policy behind the said Act on the constitution of special adjudicatory forum, is meant to expeditiously decide the grievances of a person who may be aggrieved by the order of an adjudicatory authority. In this context, we may usefully refer to para 20 of the decision of the Hon'ble Supreme Court in the case of Assistant Commissioner (CT) LTU, Kakinada and ors. V....
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....Constitution, it is unfathomable as to how the High Court can take a different approach in the matter in reference to Article 226 of the Constitution. The principle underlying the rejection of such argument by this Court would apply on all fours to the exercise of power by the High Court under Article 226 of the Constitution." 15. We now advert to the exposition of the Hon'ble Supreme Court in the case of Titaghur Paper Mills Co. Ltd vs State Of Orissa, which finds a reference in paragraph 17 of the decision in Assistant Commissioner (CT) LTU, Kakinada (supra), which reads thus: "17. We may usefully refer to the exposition of this Court in Titaghur Paper Mills Co. Ltd. & Anr. Vs. State of Orissa & Ors. wherein it is observed that where a right or liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by that statute must only be availed of. In paragraph 11, the Court observed thus: "11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority unde....
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.... Section 107 of the said Act, we do not find any force in the contention of learned counsel for the petitioner, that the date of uploading of the impugned assessment order on the GSTN portal has to be regarded as the date of communication for the purpose of calculating limitation. We have no hesitation in holding that the petitioner failed to avail of the remedy provided by the said Act for filing of an appeal within the period prescribed and therefore rightly not accepted and entertained by the appellate authority beyond the extended statutory limitation period of one month in terms of sub-section (4) of Section 107. In support of the view that we take, a profitable reference needs to be made to paragraph 24, 25 and 26 of the decision in the case of Assistant Commissioner (CT) LTU, Kakinada (supra) which reads thus :- "24. Reliance was then placed on a three Judge Bench decision of this Court in ITC Ltd. & Anr. Vs. Union of India. In that case, the High Court had dismissed the writ petition on the ground that the petitioner therein had an adequate alternative remedy by way of an appeal under Section 35 of the Central Excise Act. Concededly, this Court was pleased to uphold that ....
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....even if filed beyond the statutory period of maximum 60 days in filing appeal. The remedy of appeal is creature of statute. If the appeal is presented by the assessee beyond the extended statutory limitation period of 60 days in terms of Section 31 of the 2005 Act and is, therefore, not entertained, it is incomprehensible as to how it would become a case of violation of fundamental right, much less statutory or legal right as such." (Underlining by us)" 14.5 In para 12 of the judgement, it has been held that Rule 108 no doubt prescribes that the appeal has to be filed electronically, but it nowhere prescribes that the same is to be filed only after the impugned order is uploaded on the GSTN Portal. The date of communication of the order by email was taken as the date of communication of the order for the purposes of limitation. 14.6 The decision of Gujarat Petronet (supra) was considered and the Division Bench held as under in Para 17 thereof: "17. The decision relied upon by the petitioner in the case of Gujarat Tate Petronet Limited (supra) is rendered in a different fact situation. The petitioner therein approached the adjudicating authority time and again for uploading th....