M/S Manoj Steel Traders vs. State Of U.P. And 2 Others
Original PDF →Facts
M/s Manoj Steel Traders (petitioner) challenges an order dated 23.02.2021 by the Additional Commissioner, Grade-2 (Appeals-4), Ghaziabad, which dismissed their appeal on grounds of limitation. The dispute arose on 18.03.2018 when goods transported by the petitioner were intercepted due to the absence of an e-way bill. A notice under Section 129(3) of the UPGST Act was issued, leading to an order dated 28.03.2018 imposing tax and penalty totaling Rs. 6,13,786/-. The petitioner filed an appeal before the appellate authority with a delay condonation application, which was dismissed by the impugned order. The petitioner's goods and vehicle were released earlier via an interim order in a previous writ petition (Writ Tax No. 500/2018) dated 28.03.2018.
Held
The Court held that the appeal was filed beyond the period of limitation. It reasoned that Section 107(1) of the UPGST Act mandates that an appeal must be filed within three months from the date the decision or order is communicated to the person. Section 169(1)(a) clearly provides that service of any decision or order can be made by tendering it directly to the addressee, the taxable person, or their authorized representative or advocate. The Court noted that it was admitted that the order dated 28.03.2018 was duly communicated to the petitioner's advocate, Shri Anil Jain, on the same day. Therefore, the limitation period for filing an appeal commenced from 28.03.2018 and expired in the last week of June 2018. The Court found it surprising that the petitioner applied for a certified copy on 26.06.2019 and filed the appeal on the same day without explaining how they came to know about the order on that specific date, especially when their counsel had already been served. The Court concluded that the petitioner could not take shelter behind the argument that the order was not served upon them directly, as service upon their advocate was legally sufficient. Consequently, the impugned order rejecting the appeal as time-barred was upheld.
Key Issues
1. Whether the appeal filed by the petitioner before the Appellate Authority was within the prescribed limitation period under Section 107 of the UPGST Act, considering the date of communication of the order dated 28.03.2018? 2. Whether the service of the order dated 28.03.2018 upon the petitioner's erstwhile counsel, Shri Anil Jain, as per Section 169(1)(a) of the UPGST Act, constitutes valid communication for the purpose of computing the limitation period for appeal? Petitioner's arguments: The petitioner contended that the original penalty order was received on 26.06.2019. They argued that the delay was due to a bona fide mistake by their counsel, Shri Anil Jain, who did not inform them of the order dated 28.03.2018. They claimed to have first learned of the order on 26.06.2019, when a certified copy was applied for by another counsel, Shri Rajeev Kumar Singh, and the appeal was filed on the same day. They asserted that Section 107 should be read with Section 169, and communication should be to the aggrieved person directly, not just the counsel. They relied on the principle that counsel's mistake can be a ground for condoning delay. Respondent's arguments: The State argued that the order dated 28.03.2018 was served upon the petitioner's counsel, Shri Anil Jain, on the same day, as per Section 169(1) of the UPGST Act. They contended that the limitation period commenced from 28.03.2018, and the appeal was filed beyond the three-month period. They emphasized that service upon an advocate is sufficient as the advocate represents the petitioner. They relied on Section 169(1)(a) of the UPGST Act.
Sections Cited
Section 129, Section 107, Section 169
AI-generated summary — verify with the full judgment below
1 Neutral Citation No. - 2023:AHC:169364 RESERVED Court No. - 5 Case :- WRIT TAX No. - 391 of 2021 Petitioner :- M/S Manoj Steel Traders Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Suyash Agarwal Counsel for Respondent :- C.S.C. HON'BLE PIYUSH AGRAWAL,J.
Heard Shri Suyash Agarwal, learned counsel for the petitioner and learned ACSC for the State - respondent.
The present writ petition is being entertained in view of the fact that no GST Tribunal has been constituted in the State of U.P.
The present writ petition has been filed challenging the order dated 23.02.2021 passed by the Additional Commissioner, Grade - 2 (Appeals - 4), Ghaziabad by which the appeal of the petitioner has been dismissed on the ground of limitation.
The brief facts of the case are that the petitioner is a registered dealer and deals with the business of iron & steel. On 18.03.2018, while the goods were transported, the respondent no. 3 intercepted the goods and found that eway bill - 01 was not available with documents and consequently detained the goods and a notice was issued under section 129(3) of the UPGST Act directing the petitioner to deposit the tax & penalty. Aggrieved against the order dated 18.03.2018, the petitioner filed Writ Tax No. 500/2018, in which vide order dated 28.03.2018, an interim order was passed releasing the goods of the petitioner, along with vehicle. Ultimately, on 28.03.2018, the respondent no. 3 passed an order imposing tax amounting to Rs. 3,06,893/- and penalty amounting to Rs. 3,06,893/-. Against the order dated 28.03.2018, the petitioner preferred an appeal before the respondent no. 2
2 accompanied by delay condonation application, which has been dismissed by the impugned order dated 23.02.2021 on the ground of limitation.
Learned counsel for the petitioner submits that the original penalty order under section 129(3) of the UP GST Act was received on 26.06.2019; whereas, the original copy of the order was received by the erstwhile counsel, who did not file the appeal and therefore, the mistake on the part of the counsel, should not be treated adversely against the petitioner. He further submits that the order dated 28.03.2018 was served upon the local counsel, Shri Anil Jain, who did not communicate the said order to the petitioner. Therefore, an application was moved for getting the certified copy of the order on 26.06.2019 by another counsel, namely, Shri Rajeev Kumar Singh and on the same day, the appeal was preferred. He further submits that a bona fide mistake on the part of the counsel in pursuing a remedy is a good ground for condonation of delay in approaching the right forum in the right kind of proceedings.
He further submits that as per section 107 of the UP GST Act, the appeal can be preferred within three months from the date of communication of the order. The petitioner, being aggrieved person, for the first came to know about the order dated 28.03.2018 on 26.06.2019 and therefore, the appeal was within limitation. He further submits that in section 169 of the UP GST Act, various modes of service have been prescribed. The authorities were duty-bound to first serve the copy of the order upon the aggrieved person, i.e., the petitioner, and not upon his earlier counsel. He further submits that section 107 of the UP GST Act is to be read in consonance with section 169 of the UP GST Act, but the authorities have not consider the said aspect of the matter that the date of communication, as referred in section 107 of the UP GST Act, is the date when, for the first time, the 3 petitioner came to know about the impugned order and being aggrieved on the very day, preferred an appeal, which has illegally been rejected as beyond limitation. He further submits that the mistake on the part of the counsel of the petitioner is a reasonable cause and the appellate authority ought to have considered the same with a lenient view. He prays for allowing of the writ petition.
Per contra, learned ACSC submits that the respondent no. 3 passed an order dated 28.03.2018 after examining the entire facts and records. On the same day, copy of the order dated 28.03.2018 was served upon the counsel of the petitioner, namely, Shri Anil Jain, as per the provision of section 169(1) of the UP GST Act. The limitation starts from 28.03.2018 and the appeal could be filed by the petitioner within three months from the date of service upon its Advocate, but the 1st appeal was filed beyond the period of limitation. Thereafter, the appellate authority has rightly rejected the appeal of the petitioner after taking into consideration all the facts and materials. By referring to section 169(1) (a) of the UP GST Act, he submits that service upon the Advocate is sufficient service as the Advocate represents and appears for and on behalf of the petitioner. The petitioner cannot take shelter that the order dated 28.03.2018 has to be served upon the petitioner itself. He further submits that the order dated 28.03.2018 had already been communicated to the Advocate appearing for and on behalf of the petitioner and therefore, the impugned order has rightly been passed rejecting the appeal beyond the period of limitation. He prays for dismissal of the writ petition.
After hearing the learned counsel for the parties, the Court has perused the records.
For appreciating the controversy in hand, the relevant provisions of sections 107 (1) and 169 of the UP GST Act are quoted below:-
4 Section 107. Appeals to Appellate Authority: (1) Any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax 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. Section 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 acknowledgment 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 e-mail 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 whom it is issued is last known to have resided, carried on business or personally worked for gain; or (f) if none of the modes aforesaid is practicable, by affixing it in some conspicuous place at his last known place of business or residence and if such mode is not practicable for any reason, then by affixing a copy thereof on the notice board of the office of the concerned officer or authority who or which passed such decision or order or issued such summons or notice.
5 (2) Every decision, order, summons, notice or any communication shall be deemed to have been served on the date on which it is tendered or published or a copy thereof is affixed in the manner provided in sub-section (1). (3) When such decision, order, summons, notice or any communication is sent by registered post or speed post, it shall be deemed to have been received by the addressee at the expiry of the period normally taken by such post in transit unless the contrary is proved.
From the perusal of the aforesaid provisions, it is evidently clear that the appeal against an order can be preferred within a period of three months from the date of communication. Section 169 (1)(a) of the UPGST Act provides that any decision, order, summons, notice or other communication shall be served by any one of the following methods, namely, 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. Therefore, it is evident that the order communicated on an Advocate will be deemed service upon the petitioner.
It is admitted that the order was passed on 28.03.2018 and the said order was duly communicated to the Advocate of the petitioner, namely, Shri Anil Jain. Once an order has been communicated on 28.03.2018, the limitation for filing an appeal within a period of three months ends in the last week of June, 2018. 12. Learned counsel for the petitioner argued that on 26.06.2019, an application was moved for getting the certified copy of the order through another counsel, namely, Shri Rajeev Kumar Singh, and on that very day, the appeal was preferred without any further delay. On the pointed query as to how and under what mode the petitioner came to know about the passing the order dated 28.03.2018 on 26.06.2019, learned counsel for the petitioner
6 could not reply the same and submitted that the appeal filed below is silent on this point.
Surprisingly, without any communication or any reference about the knowledge of the order dated 28.03.2018 being passed, the certified copy of the order was applied and on the same day, the appeal was preferred. On perusal of section 5 application of the petitioner filed in support of the appeal, not a single word has been whispered as to how and in what method the petitioner came to know about the said order on 26.06.2019 and as to why the application was moved on 26.06.2019 by another counsel, when the order dated 28.03.2018 was already communicated to the petitioner's Advocate, namely, Shri Anil Jain. Once the Advocate, namely, Shri Anil Jain, was representing the petitioner before the respondent – Assistant Commissioner, State Tax, Mobile Squad, on which the order dated 28.03.2018 was served on the same day, i.e., on 28.03.2018, was not disputed at any stage and the only ground taken was that Shri Anil Jain, Advocate has not informed the petitioner about the order dated 28.03.2018. In view of these facts not being in dispute, the impugned order cannot be interfered with.
In view of the aforesaid facts & circumstances of the case, the writ petition lacks merit and the same is hereby dismissed. Order Date :-23/08/2023 Amit Mishra AMIT KUMAR MISHRA High Court of Judicature at Allahabad
Reproduced from the public record of the Allahabad High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.