M/S Tridev Enterprieses Through Its Proprietor Sunil Kumar Mittal vs. Additional Commissioner Grade - 2 (Appeal) -I State Tax Meerut And Another

Facts

The petitioner, M/s Tridev Enterprises, filed a writ petition challenging two orders: an ex-parte order dated 24.02.2022 by the Additional Commissioner Grade-2 (Appeal) - I, State Tax Meerut, which dismissed their appeal, and a subsequent order dated 22.09.2022 by the same authority, which rejected their application to set aside the ex-parte order. The petitioner's counsel argued that the ex-parte order was passed because the counsel's father-in-law was suffering from cancer and could not appear. They also contended that since the GST Tribunal had not been constituted, there was no forum to challenge the ex-parte order, and the CGST Act lacked a provision for a recall application. The petitioner relied on earlier Division Bench judgments of the High Court.

Held

The Court held that the first appellate authority was not justified in rejecting the petitioner's application for recalling the ex-parte order. While acknowledging the revenue's argument that Section 161 of the CGST Act is for rectification and not recall, the Court found that the petitioner's situation warranted intervention. Citing earlier Division Bench judgments of the High Court, the Court stated that where no specific provision for a recall application exists, the High Court, exercising its powers under Article 226 of the Constitution, could direct authorities to consider such applications. Therefore, the order dated 22.09.2022, which rejected the recall application, was set aside. The matter was remitted back to the first appellate authority for a fresh decision after affording the petitioner an opportunity to appear on 25.01.2023. The authority was directed to pass a fresh decision without being influenced by the earlier orders.

Key Issues

1. Whether the first appellate authority was justified in rejecting the petitioner's application for setting aside the ex-parte order dated 24.02.2022, particularly when the petitioner's counsel could not appear due to a family medical emergency and the absence of a constituted GST Tribunal. Petitioner's arguments: The petitioner argued that the ex-parte order was passed due to unavoidable circumstances related to the counsel's family illness. They further contended that the absence of a constituted GST Tribunal meant there was no alternative remedy to challenge the ex-parte order, and the CGST Act did not provide for a recall application. They relied on the Division Bench judgments in M/s. M.P. Poddar & Company vs. Additional Judge (Revisions) Sales Tax Gorakhpur and Shyam Behari Tewari vs. Goods Tax Officer, Allahabad. Revenue's arguments: The revenue contended that the petitioner had wrongly filed an application under Section 161 of the CGST Act, which is meant for rectification of errors apparent on the face of the record. According to the revenue, the appropriate remedy would have been to file a recall application, and the first appellate authority was correct in rejecting the Section 161 application.