APPEAL ORDER NOT UPLOADED ON PORTAL PHYSICAL APPEAL WITH COD ALLOWED

[DEV KUMAR KOTHARI]

Recent case under study:

2022 (1) TMI 50 - KERALA HIGH COURT

JOSE JOSEPH, VERSUS ASSISTANT COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE, ALAPPUZHA, ADDITIONAL COMMISSIONER (APPEALS) , KOCHI, THE UNION OF INDIA  W.P.(C) Nos. 8960, 8966, 8977 & 9052 of 2021 Dated: - 17 December 2021

Related judgments referred and followed  on some principals and/or distinguished:

2020 (5) TMI 149 - SUPREME COURT

ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED

2020 (9) TMI 427 - GUJARAT HIGH COURT

GUJARAT STATE PETRONET LIMITED VERSUS UNION OF INDIA THROUGH SECRETARY

R/Special Civil Application No. 15607 of 2019  Dated: - 05 March 2020

2020 (3) TMI 1204 - ORISSA HIGH COURT

DEBABRATA MISHRA VERSUS THE COMMISSIONER OF CT AND GST, ADDL. COMMISSIONER, CT AND GST, CT AND GST OFFICER

W.P.(C) NO.370 of 2020  Dated: - 18 February 2020

Case of JOSE JOSEPH (supra):

In this case Original and appealable  order was not uploaded on the portal . Matter also involved refund of unutilized input tax credit.

It is  undisputed fact that the order  dt. 29.03.2019 was never uploaded in the web portal of the respondents and hence, the petitioner could not file appeals in the electronic form as prescribed under law.

Taxpayer / assesse received copy of order on 10.04.2019 however, he waited for order to be uploaded on portal so that an e-appeal could be uploaded. This is because apparently there was no other method prescribed for filing of appeal.

Finding no order on the portal the petitioner preferred appeals manually only on 09.01.2020, Tith a delay of 184 days.

The Appellate Authority dismissed the appeals as time-barred by referring  and relying on decisions in cases  DEBABRATA MISHRA VERSUS THE COMMISSIONER OF CT AND GST, ADDL. COMMISSIONER, CT AND GST, CT AND GST OFFICER [2020 (3) TMI 1204 - ORISSA HIGH COURT] and ASSISTANT COMMISSIONER (CT) LTU, KAKINADA & ORS. VERSUS M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [2020 (5) TMI 149 - SUPREME COURT]

However, facts of those cases were found different. In the present case there was no other method prescribed for filing of appeal. Unless and until original order was uploaded and link for filing of appeal was provided, it was not possible to file appeal as per prescribed method and procedure. It appears that by following rule of ‘play safe’ and take a chance, assesse preferred appeal in hard copy.

In this case , in view of author the appellate authority should have admitted appeal and he should have taken steps for regularization of appeal by taking departmental steps for providing order in portal and link for uploading appeal so that appeal could be placed in portal for necessary action.

By dismissing the appeal as time barred definitely appellate authority did not follow the principles of natural justice.

On consideration of all aspects honorable High Court admitted WP and held that

“it is the admitted case of both the petitioner and the respondents that the orders impugned in the appeals, though dated 29.03.2019, were never uploaded in the web portal to enable the petitioner to prefer the electronic filing of appeals, as prescribed. There is no quarrel that the Commissioner has not issued any notification specifying any other form of appeal. However, on the basis of receipt of a copy of the order on 10.04.2019, the petitioner preferred appeals manually only on 09.01.2020, with a delay of 184 days.  

When admittedly there was a failure on the part of the respondents to upload the order in the original, petitioner cannot be mulcted with the responsibility of preferring appeals within the time period stipulated. The time period stipulated in the statute for filing an appeal is part of the same transaction that exists with the uploading of an order in the original - When the mode of appeal prescribed by Rules is only the electronic mode, the time limit of three months can start only when the assessee had the opportunity to file the appeal in the electronic mode. The assessee cannot be blamed if he waited for the order to be uploaded to the web portal, even if he had in the meantime received the physical copy of the order.

The petitioner is entitled to have his appeals that were filed manually, to be treated as having been filed within time .

Thus the Petition was allowed.

Cases referred and distinguished:

IN M/S. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED supra  the fact was that

1.  The option to file statutory appeal was foreclosed by time limitation including extended period of limitation
2. The  WP  was on the sole ground that the statutory remedy of appeal against that order stood foreclosed by the law of limitation.
3. The Supreme Court reversed order and judgment of High Court and held that in Writ Jurisdiction High Court and Supreme Court could not entertain WP merely on the ground that the time allowed including extended maximum period to file appeal lapsed and petitioner did not file appeal.
4. Supreme court noted , observed  regarding the power of the High Court to issue directions, orders or writs in exercise of its jurisdiction under Article 226 of the Constitution of India, that  the same is no more res integra.

Even though the High Court can entertain a writ petition against any order or direction passed/action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law.

5. The remedy of appeal is creature of statute. If the appeal is presented by the assessee beyond the extended statutory limitation period of 60 days in terms of Section 31 of the 2005 Act and is, therefore, not entertained, it is incomprehensible as to how it would become a case of violation of fundamental right, much less statutory or legal right as such - Pertinently, no finding has been recorded by the High Court that it was a case of violation of principles of natural justice or non­compliance of statutory requirements in any manner.
6. What the Supreme  Court cannot do in exercise of its plenary powers under Article 142 of the Constitution, it is unfathomable as to how the High Court can take a different approach in the matter in reference to Article 226 of the Constitution. The principle underlying the rejection of such argument by the Supreme  Court would apply on all fours to the exercise of power by the High Court under Article 226 of the Constitution.
7. Furthermore theSupreme Court also considered that no finding has been recorded by the High Court that it was a case of violation of principles of natural justice or non­compliance of statutory requirements in any manner.

Per author: It appears that in the case of  Glaxo supra.  other  contentions which were important were not raised because apparently the petitioner and his counsels were over confident that when no further time could be allowed by authorities then High Court and / or the Supreme Court could entertain his claim by admitting WP.    The fact that the petitioner somehow, due to own shortcoming did not file appeal in time. Thus other contentions must have been raised . It is good practice to raise all possible contentions based on facts, circumstances and law.