M/S J.K Infratech vs. Additional Commissioner And Another
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The petitioner, M/s J.K. Infratech, challenged an order dated 16.07.2021 passed by the Additional Commissioner Grade II (Appeal), Commercial Tax, Sonbhadra. This order dismissed the petitioner's appeal against an earlier order dated 17.09.2019 by the Assistant Commissioner, Sector-3, Commercial Tax, Sonbhadra, which had cancelled the petitioner's GST registration. The Appeal Authority dismissed the appeal as time-barred. The petitioner contended that the cancellation order dated 17.09.2019 was passed ex-parte, purportedly served through the common portal, and the physical copy was never received. A Government Order dated 29.07.2020 deemed service of such orders to be on 31.08.2020. Furthermore, the period of limitation for filing appeals was suspended by the Supreme Court and the High Court from 15.03.2020 to 14.03.2021.
Held
The Court held that the appeal filed by the petitioner was within the period of limitation. The reasoning was based on the Government Order dated 29.07.2020, which deemed the service of the cancellation order dated 17.09.2019 to have been made on 31.08.2020. Coupled with the suspension of the limitation period from 15.03.2020 to 14.03.2021 by orders of the Supreme Court and the High Court, the period of limitation for filing the appeal would commence from 15.03.2021. Since the petitioner filed their appeal on 19.03.2021, it was considered to be well within time. The impugned order dated 16.07.2021, which dismissed the appeal as time-barred, was therefore set aside. The matter was remitted to the Appeal Authority to decide the appeal on merits, treating it as having been filed within time. The Court did not expressly leave any issue undecided.
Key Issues
1. Whether the appeal filed by the petitioner before the Additional Commissioner Grade II (Appeal) was within the prescribed period of limitation, considering the deemed date of service of the cancellation order and the suspension of limitation periods. Petitioner's arguments: The petitioner argued that the cancellation order dated 17.09.2019 was served on them only on 31.08.2020 as per Government Order no. 792 dated 29.07.2020. They further contended that the period of limitation for filing an appeal, which is three months with a condonable delay of one month under Section 107 of the U.P. GST Act, 2017, was suspended from 15.03.2020 to 14.03.2021. Therefore, with the deemed service date of 31.08.2020 and the suspension of limitation, their appeal filed on 19.03.2021 was within time. Respondent's arguments: The judgment does not record any specific arguments made by the respondent (Additional Commissioner and Another).
Sections Cited
Section 107
AI-generated summary — verify with the full judgment below
Court No. - 38 Case :- WRIT TAX No. - 76 of 2022 Petitioner :- M/S J.K Infratech Respondent :- Additional Commissioner And Another Counsel for Petitioner :- Aditya Pandey,Bipin Kumar Pandey Counsel for Respondent :- C.S.C. Hon'ble Saumitra Dayal Singh,J.
Heard Shri Aditya Pandey, learned counsel for the petitioner and Shri Jagdish Mishra, learned Standing Counsel.
Challenge has been raised to the order dated 16.07.2021 passed by the Additional Commissioner Grade II (Appeal), Commercial Tax, Sonbhadra, whereby the said authority has dismissed the appeal no. GST-09/2021 filed by the petitioner against the order dated 17.9.2019 passed by Assistant Commissioner, Sector-3, Commercial Tax, Sonbhadra, cancelling the petitioner's registration. The appeal has been dismissed by the Appeal Authority as time barred.
Having heard learned counsel for the parties and having perused the record, it transpires, the registration cancellation order dated 17.9.2019 was passed ex-parte pursuant to a notice claimed to be served through the common portal. The petitioner could not reply to the same as he claimed lack of knowledge. Thereby, ex-parte order was passed on 17.9.2019 cancelling the petitioner's registration. The said order is claimed to have been served to the petitioner again through the common portal on 17.9.2019 itself. The physical copy of the order dated 17.9.2019 was never served on the petitioner. Meanwhile, Government of U.P. issued Government Order no. 792 dated 29.7.2020 providing, in cases involving facts such as those obtaining in the present case, the service of the orders would be deemed to have been made on 31.8.2020. Then the period of limitation to institute appeal etc., stood suspended by various orders passed
by the Supreme Court as also this Court. Thus the period of limitation from 15.3.2020 to 14.3.2021 stood suspended.
In view of the above facts, the present petition deserves to be allowed as the limitation to file first appeal under Section 107 of the U.P. GST Act, 2017, was three months with delay condonable for a period of one month. Once the order dated 17.9.2019 is taken to have been served on the petitioner on 31.8.2020, then in view of the suspension of limitation from 15.3.2020 to 14.3.2021 the limitation to file the appeal would start running from 15.3.2021. In that case, the appeal having been filed on 19.3.2021, the same was wholly within time.
For the reasons contained above, the impugned order dated 16.07.2021 passed by the appeal authority cannot be sustained. It is set aside. The matter is remitted to the appeal authority to proceed to hear and decide the appeal filed by the petitioner dated 19.3.2021, on merits, treating the same to have been filed within time.
Accordingly, the present petition is allowed. Order Date :- 24.2.2022 Prakhar SRIVASTAVA Date: 2022.02.25 10:37:33 IST Reason: Location: 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.