Vikash Kumar vs. The Union Of INDIA
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The petitioner, Vikash Kumar, is aggrieved by the cancellation of his GST registration. A show cause notice for cancellation was issued on 19.11.2018, and an order of cancellation was passed on 05.04.2019. The petitioner filed an appeal against this order, which was rejected by the Appellate Authority on 15.11.2023, primarily on the grounds of delay. The Appellate Authority considered the appeal to be instituted only on 17.10.2023 when the hard copy was submitted, despite an online appeal having been filed on 28.11.2021. The petitioner approached the High Court challenging the rejection of his appeal.
Held
The Court held that an electronic filing of an appeal, as per Rule 108 of the CGST Rules, 2017, constitutes a proper institution of an appeal. The Appellate Authority erred in considering only the date of submission of the hard copy as the institution date. Furthermore, the Court took into account the Supreme Court's directions in Suo Motu Writ Petition (C) No. 3 of 2020, which extended the period of limitation due to the pandemic. Considering these extensions, the appeal filed by the petitioner was within the permissible time. Consequently, the order of the Appellate Authority rejecting the appeal on grounds of delay was set aside. The appeal was restored to the file of the Appellate Authority for a fresh hearing and disposal. The petitioner was directed to appear before the Appellate Authority on 05.02.2024.
Key Issues
1. Whether an electronic filing of an appeal, as per Rule 108 of the CGST Rules, 2017, constitutes proper institution of an appeal, or if the subsequent submission of a hard copy is the sole determinant of the institution date? 2. Whether the period of limitation for filing the appeal, including any condonation of delay, should be considered in light of the Supreme Court's directions in Suo Motu Writ Petition (C) No. 3 of 2020, extending limitation due to the pandemic? Petitioner's Arguments: The petitioner contended that an electronic filing of an appeal should be considered a proper institution. They also argued that the period of limitation should be extended as per the Supreme Court's directions in the Suo Motu Writ Petition regarding the extension of limitation due to the pandemic, which would render their appeal within the permissible time frame. Revenue's Arguments: The judgment does not record any specific arguments made by the revenue or state.
Sections Cited
Section 107, Rule 108
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Cause title — parties, addresses and appearances
ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 11-01-2024 The petitioner is aggrieved with the cancellation of registration against which an appeal was filed which was rejected as delayed on 15.11.2023 at Annexure-2. A show cause for cancellation of registration was issued on 19.11.2018 and the order was passed on 05.04.2019, both the orders are produced as Annexure-1. 2. A reading of the appellate order would indicate that an online appeal was filed on 28.11.2021 and a hard copy was submitted only on 17.10.2023, hence, the Appellate Authority 2/3 considered, the appeal having been instituted properly, only on 17.10.2023, based on which, the appeal was rejected for reason of gross delay.
We see from Rule 108 of the CGST Rules, 2017 that an appeal to the appellate authority under Section 107 is to be filed in Form GST APL-01 along with relevant documents either electronically or otherwise, as notified by the Commissioner. Hence, an electronic filing cannot be considered to be an improper institution of an appeal.
In this context, Section 107 of the Bihar Goods and Services Tax Act, 2017 (“BGST Act” hereafter) permits an appeal to be filed within three months and also apply for delay condonation with satisfactory reasons within a further period of one month. We also have to take into account the saving of limitation granted by the Hon’ble Supreme Court in Suo Motu Writ Petition (C) No. 3 of 2020, In Re: Cognizance For Extension of Limitation, wherein, due to the pandemic situation limitation was saved between 15.03.2020 till 28.02.2022. It was also directed that an appeal could be filed within ninety days from 01.03.2022. Here, the order impugned in the appeal was dated 05.04.2019. An appeal was to be filed on or before 30.06.2022 as permitted by the Hon’ble Supreme 3/3 Court and if necessary, with a delay condonation application within one month thereafter. The present appeal was filed only on 28.11.2021, when the limitation stood extended by the Hon’ble Supreme Court as per Suo Motu Writ Petition (C) No. 3 of 2020. In such circumstances, there could not have been any rejection made of the appeal for reason of the delay occasioned.
We, hence, set aside the order in appeal at Annexure-2 and restore the appeal to the files of the Appellate Authority. The petitioner shall appear before the Appellate Authority on 05.02.2024 and the Appellate Authority, either on the said date or another date fixed for hearing, shall hear the matter and pass a speaking order.
The writ petition stands disposed of.
Sujit/- (K. Vinod Chandran, CJ) ( Rajiv Roy, J) AFR/NAFR NAFR CAV DATE Uploading Date 12.01.2024 Transmission Date
Reproduced from the public record of the Patna High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.