TaxTMI 
TaxTMI 
2024 (2) TMI 1173
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.... Assailing the Order dated 09.08.2023 of the Additional Commissioner of State Tax (Appeal), Central Zone-II, Odisha at Cuttack passed under Section 107 of the Odisha Goods and Services Tax Act/the Central Goods and Services Tax Act, 2017 (Collectively be called, "GST Act") rejecting the Appeal bearing No. AD 210223003708N filed on 15.02.2023, directed against assessment framed by Additional CT & GST Officer, Kenonjhar Circle, Jajpur exercising power under Section 63 vide Order dated 30.10.2021, the petitioner has invoked extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India beseeching following relief(s): "Under the aforesaid circumstances, it is prayed, therefore, that this Hon'ble Court may be graciously pleased to: (a) Admit the writ application; (b) Issue rule nisi calling upon the opposite party No. 9 as to why Notification dated 02.11.2023 vide Annexure-7 shall not be held to be discriminatory and in violation of Article 14 of the Constitution of India to the extent it permits only a class of persons to avail the benefit of the said amnesty scheme i.e. orders passed under Section 73 and Section 74 of the ....
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....The petitioner has also been adjudicated under Section 74 of the OGST/CGST Act, 2017 vide Order dated 29.03.2023 passed by the Deputy Commissioner of State Tax, CT & GST Circle, Keonjhar for the self-same tax periods, i.e., 2019-20, treating the concern as registered person bearing GSTIN: 21ACDPD0572H2Z9, against which appeal being filed on 09.06.2023, provisional acknowledgment bearing No. AD 2106230013750 was generated and said appeal has been pending consideration. 2.3. As the matter stood thus, following Notification F. No. CBIC-20001/10/2023-GST [No. 53 of 20234 Central Tax], dated 02.11.2023 has been issued by the Ministry of Finance (Department of Revenue) (Central Board of Indirect Taxes and Customs): "S.O. No. 4767(E)- In exercise of the powers conferred by Section 148 of the Central Goods and Services Tax Act, 2017 (12 of 2017) (hereinafter referred to as the said Act), the Central Government, on the recommendations of the Council, hereby notifies taxable persons who could not file an appeal against the order passed by the proper officer on or before the 31st day of March, 2023 under Section 73 or 74 of the said Act (hereinafter referred to as the said order),....
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....ied to restore/revive the appeal dismissed by Order dated 09.08.2023 by the Additional Commissioner of State Tax (Appeal), Central Zone-II, Odisha, at Cuttack, but the portal did not accept with remark that "order number entered is already under appeal or appeal order has been passed. If error persists, please call GST helpdesk or log your issues on Grievance Redressal Portal for GST and quote error number APFOAS1009". 2.5. The petitioner on 05.12.2023 placed grievance appraising the opposite party No. 1 to condone the delay in view of aforesaid notification dated 02.11.2023 on the portal which was assigned with ticket number G-2023120511677783. The grievance cell acknowledging the said grievance sent an e-mail dated 05.12.2023 whereby it informed that the request is registered and the status is "OPEN" and the petitioner would soon be updated. The grievance cell further updated by e-mail dated 11.12.2023 that the petitioner has to file representation to the office of the Appellate Authority and the said authority would check the eligibility of the representation for the availing benefit under the benevolent notification and forward the case to GSTN through State Nodal Officer. S....
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....y a class of persons to avail the benefit of the said amnesty scheme i.e. orders passed under Section 73 and Section 74 of the OGST/CGST Act, 2017 and in violation of natural justice and therefore unsustainable in law. (d) Issue writ of mandamus directing the Opp. Party No. 1 & 5 to restore/revive the appeal dismissed on the ground of delay in view of notification dated 02.11.2023 in the ends of justice." 3. In course of hearing, this Court made a query as to whether the learned counsel appearing for the petitioner will confine her arguments with regard to prayer No.(b) or prayer No.(d), and whether the opposite parties are properly impleaded or not. Learned counsel appearing for the petitioner stated that if the relief is granted today, she will confine her argument to prayer No.(d) and so far as prayer No.(b) is concerned, she sought time for further study. 4. On her request, put up this matter on Monday (29.01.2024)." 3.1. When the matter is taken up today (29.01.2024) for further hearing, Smt. Kajal Sahoo, learned Advocate very fairly stated that the petitioner does not wish to press prayer No.(b), but pressed into service the contentions so far as....
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....T Act. 4.2. It has been asserted by Smt. Sahoo that the petitioner has been furnishing returns by self-assessment regularly as required under the statute and disclosed turnovers in such returns by quoting GSTIN: 21ACDPD0572H2Z9, which has been accepted by the portal. 4.3. However, the CT & GST Organisation has created temporary registration bearing No. 212100002050TMP vide Form GST REG-12 as prescribed under Rule 16(1) of the Odisha Goods and Services Tax Rules, 2017, on 01.07.2021. Referring to "effective date of registration/temporary ID" as reflected at Column No. 11 of said form, which shows "01.07.2021", Smt. Kajal Sahoo, learned Advocate urged that the Authority misdirected himself by taking up assessment under Section 63, as the Authority himself has treated the petitioner as unregistered person with effect from 01.07.2021. This is indicative of the fact that even prior to 01.07.2021 the petitioner has been registered person. 4.4. Placing reliance on Delhi Foot Wear Vrs. Sales Tax Officer, (2015) 77 VST 146 (Ori), wherein dicta laid down in Taylor Vrs. Taylor, (1876) 1 Ch.D. 426; Nazir Ahmed Vrs. King Emperor, AIR 1936 PC 253; Ram Phal Kundu Vrs. Kamal Sharma, (2004....
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....Standing Counsel for the CT & GST Organisation as also Sri Avinash Kedia, learned Junior Standing Counsel submitted in one voice that no leniency should be shown as the petitioner did not respond to the show cause notices. DISCUSSIONS AND ANALYSIS: 6. Scanning through the record it is transpired that the Appellate Authority has passed the following Order on 09.08.2023 while rejecting the appeal: "This is an appeal preferred by M/s. Aurpa Nanda Dhal, GSTIN-212100002050TMP (herein referred as the appellant) U/s 107 (1) of the OGST Act, 2017 against the demand order passed by the Additional CT & GST Officer, Keonjhar Circle, Jajpur (herein referred as LPO) vide Ref No-ZD2110210128941 dated 30.10.2021. On being aggrieved by the order, the appellant has preferred the present appeal in Form GST APL-01 on dated 15.02.2023. As per Section 107(1) of the CGST/OGST 2017 'Any person aggrieved by any decision order passed under this act by an adjudicating authority may appeal to such appellate authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person'. On verification of the appeal applica....
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.... "Assessment of unregistered persons.- Notwithstanding anything to the contrary contained in Section 73 or Section 74, where a taxable person fails to obtain registration even though liable to do so or whose registration has been cancelled under sub-section (2) of Section 29 but who was liable to pay tax, the proper officer may proceed to assess the tax liability of such taxable person to the best of his judgement for the relevant tax periods 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: Provided that no such assessment order shall be passed without giving the person an opportunity of being heard." 6.3. Glance at provisions contained in Section 63 would reveal that the Assessing Authority is vested with power to invoke jurisdiction under Section 63 inter alia in the event "taxable person fails to obtain registration even though liable to do so". Evidence available on record is silent about existence of such jurisdictional fact. 6.4. Expanding her argument, Smt. Kajal Sahoo, learned Advocate submitted tha....
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....o consideration the explanation proffered by the petitioner with regard to delay in filing the appeal after disposal of W.P.(C) No. 27502 of 2022 by this Court in proper perspective. 6.6. This Court is of the considered opinion that the reason assigned by the Appellate Authority is not in accord with material on record. 7. Since the Assessment Order dated 30.10.2021 was passed in exercise of power under Section 63 treating the petitioner to be unregistered person, notwithstanding that it was within his knowledge that the petitioner was a registered person, there is no whisper about the petitioner-taxable person failed to obtain registration even though liable to do so. 7.1. Bare reading of Section 63 makes it abundantly clear that in order to assume jurisdiction to assess a taxable person treating him to be unregistered either of the two following circumstances must exist: i. where a taxable person fails to obtain registration even though liable to do so; or ii. whose registration has been cancelled under sub-section (2) of Section 29 but who was liable to pay tax. 7.2. The very fact that on the date of issue of notice for assessment under Sec....
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.... such fact does not exist, a Court, Tribunal or Authority cannot act. It is also well settled that a Court or a Tribunal cannot wrongly assume existence of jurisdictional fact and proceed to decide a matter. The underlying principle is that by erroneously assuming existence of a jurisdictional fact, a subordinate court or an inferior tribunal cannot confer upon itself jurisdiction which it otherwise does not possess. *** 29. But there is distinction between "jurisdictional fact" and "adjudicatory fact" which cannot be ignored. An "adjudicatory fact" is a "fact in issue" and can be determined by a Court, Tribunal or Authority on "merits", on the basis of evidence adduced by the parties. It is no doubt true that it is very difficult to distinguish "jurisdictional fact" and "fact in issue" or "adjudicatory fact". Nonetheless, the difference between the two cannot be overlooked." 7.5. Aforesaid dicta of the Hon'ble Supreme Court of India clarifies the position that where an adjudicatory process is involved on merits, then the only remedy open to an assessee is to go through the procedure provided under the enactment. Nonetheless, where there is absence of jurisdict....
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....rcate two areas of enquiry, the Tribunal's findings within one area being conclusive and within the other area impeachable. The jurisdiction of an inferior Tribunal may depend upon the fulfilment of some condition precedent or upon the existence of some particular fact. Such a fact is collateral to the actual matter which the Tribunal has to try and the determination whether it exists or not is logically prior to the determination of the actual question which the Tribunal has to try. The Tribunal must itself decide as to the collateral fact when, at the inception of an inquiry by a Tribunal of limited jurisdiction, a challenge is made to its jurisdiction, the Tribunal has to make up its mind whether it will act or not, and for that purpose to arrive at some decision on whether it has jurisdiction or not. There may be Tribunals which, by virtue of legislation constituting them, have the power to determine finally the preliminary facts on which the further exercise of their jurisdiction depends; but, subject to that an inferior Tribunal cannot, by a wrong decision with regard to a collateral fact, give itself a jurisdiction which it would not otherwise possess. The characteristic att....
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....uthority makes an order which lacks inherent jurisdiction, such an order would be without jurisdiction, null and void ab initio, as the defect of jurisdiction of such authority goes to the root of the matter and strikes at his very authority to pass any order and such a defect cannot be cured even by consent of the parties. *** However, exercise of jurisdiction in a wrongful manner cannot result in a nullity-it is an illegality capable of being cured in duly constituted legal proceedings. Proceedings for assessment under a fiscal statute are not in the nature of judicial proceedings, like proceedings in a suit, inasmuch as the Assessing Officer does not adjudicate on a lis between an assessee and the State, and, therefore, the law on the issue laid down under the civil law may not stricto sensu apply to assessment proceedings. *** 18. Therefore, the law emerges that in case the authority is found to lack inherent/patent jurisdiction, the order becomes a nullity. However, in case there has been any illegality in following the procedure prescribed by law, the order remains merely illegal and would be curable. *** 24. Before partin....
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....f to keep the jurisdictional issue in mind" has not gone down well with the CT & GST Organisation. The Assessing Authority has taken no care to verify his own jurisdiction to exercise power under Section 63 to proceed with an assessment of taxable person who has already been registered. It is not in dispute that the Assessing Authority while accessing data available in WAMIS, could also verify the status of registration or otherwise of the petitioner and returns furnished by the petitioner from its web-portal. Having not done so, it seems the Assessing Authority has proceeded to conduct fishing and roving enquiry. In absence of tangible material on record regarding failure of the petitioner "to obtain registration even though liable to do so", such erroneous exercise of power under Section 63 goes to the root of the matter and warrants issue of writ of certiorari in view of ratio of Arun Kumar Vrs. Union of India, (2007) 1 SCC 732 and Carona Ltd. Vrs. Parvathy Swaminathan and Sons, (2007) 8 SCC 559. 8. Be that as it may, in the present matter, it fell for consideration whether the Appellate Authority could have condoned the delay in filing appeal, particularly when he has cited ....
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....07.2017 and the Assessing Authority having undertaken assessment under Section 74 of the GST Act was well aware of the fact that the petitioner has been granted registration under the GST Act. Therefore, there was no scope for exercise of power under Section 63 of the GST Act. Such being erroneous exercise of power, this Court may wish to quote the following from N. Mani Vrs. Sangeetha Theatre, (2004) 12 SCC 278: "It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law." 9.3. Therefore, treating the exercise of power under Section 63 of the GST Act as erroneous on the part of the Assessing Authority it is but necessary to observe that the Appellate Authority is required now to decide the appeal on merits. 10. It needs to be mentioned that Section 63 of the GST Act is couched in the negative by use of the words "no such assessment order shall be passed without giving the person an op....
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....d with 'service of notice'. The position is clarified in the said Judgment to the effect that "once a notice is issued within the period of limitation, jurisdiction becomes vested in the Income-tax Officer to proceed to reassess. The mandate of Section 148(1) is that reassessment shall not be made until there has been service." 10.4. Provisions of Section 169 of the GST Act which deals with service of notice would make the position as follows: "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 ....
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....ween the State GST and Central GST and the web portal which has to be resolved. 13. The respondents can therefore continue the service of notice through registered post or speed post or courier with acknowledgment to the petitioners at their last known place of business or residence and upload the same in the web portal. Till all problems are resolved on the technical side, the authority may simultaneously serve the notice of assessment and communications under the Act and Rules both through registered post or speed post or courier with acknowledgment as is contemplated Section 169(1)(b) of the Act and through web portal. 14. Once all technical problems are resolved, the practice of sending physical copy through registered post or speed post or courier with acknowledgment may be dispensed with." 10.6. Section 27 of the General Clauses Act, 1897, deals with the meaning of 'service by post'. It states that: 'Where any (Central Act) or Regulation made after the commencement of this Act authorizes of requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression in used, then, unless a ....
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....sed on a legal maxim 'Expressio unius est exclusion alteris', meaning thereby that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following other course is not permissible." 10.10. As is apparent from the Assessment Order impugned herein it is fact that the notice and said order was communicated in Temporary Registration Number without making the same made known to the petitioner. Therefore, there was sufficient reason for the petitioner not to have participated in the proceeding initiated under Section 63, which is illegal assumption of jurisdiction in view of the fact that it was within the knowledge of the Assessing Authority that the petitioner has valid registration. Reading of provisions of Section 63 and Section 169 of the GST Act in juxtaposition, it is manifest that sending the communication or notice in Temporary Registration Number is not the requirement. 10.11. There being sufficient plausible reason ascribed by the petitioner for approaching the Appellate Authority by way of filing appeal under Section 107 and the Appellate Authority should not have been pedantic in his approac....
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....reme Court held as follows: "It is a well-settled rule of practice of this Court not to interfere with the exercise of discretionary power under articles 226 and 227 of the Constitution merely because two views are possible on the facts of a case. It is also well established that it is only when an order of a Tribunal is violative of the fundamental basic principles of justice and fair play or where the order passed results in manifest injustice, that a Court can justifiably intervene under Article 227 of the Constitution." 12.2. Article 226 of the Constitution of India preserves to the High Court power to issue writ of certiorari amongst others. The principles on which the writ of certiorari is issued are well-settled. It would suffice for our purpose to quote from the seven Judge Bench decision of this Court, the Hon'ble Supreme Court in Hari Vishnu Kamath Vrs. Ahmad Ishaque, (1955) 1 SCR 1104 = AIR 1955 SC 233. The four propositions laid down therein were summarized by the Constitution Bench in Custodian of Evacuee Property Vrs. Khan Saheb Abdul Shukoor, (1961) 3 SCR 855 = AIR 1961 SC 1087 as under: "The High Court was not justified in looking into ....