TMI Blog2021 (4) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... l on 22.06.2020 and the AAAR has passed an order dismissing the appeal on 21.09.2020 which is impugned in the present writ petition. Notification issued by the CBDT dated 03.04.2020 is certainly not a Notification extending the period of limitation provided under the statute in respect of appeals. Reliance is also placed upon the judgment delivered by the Hon ble Supreme Court in the case of HIND WIRE INDUSTRIES LTD. VERSUS COMMISSIONER OF INCOME TAX, WEST BENGAL-V. [ 1995 (1) TMI 415 - SUPREME COURT] . It was a case under the Income Tax Act. The Supreme Court has held that the word order in the expression order sought to be amended does not necessarily mean the original order and may mean the rectified order, therefore, second rectification within four years from the order of rectification was justified. - In the aforesaid case, there was no outer limit prescribed in the matter of limitation. In the present case, it has been provided under the statute that delay can be condoned only up to 30 days. In the considered opinion of this court, such application for rectification of the mistake was dismissed summarily there was no error apparent, hence, the doctrine of merger has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is located in Donimalai Township, Donimalai, Sandur, Ballari District having GSTIN number 29AAACN7325A1ZR. Since inception, the petitioner is involved in the exploration of wide range of minerals including iron ore, copper, lime stone, dolomite etc., and also owns a pellet plant adjacent to Donimalai Iron Ore in the State of Karnataka. The petitioner is required to pay royalty as per Section 9(1) of the Mines and Minerals (Development Regulation) Act, 1957 (hereinafter referred to as MMDR Act ). 2.1 Section 97 of the CGST Act, 2017 empowers a person to approach the Authority to Advanced Ruling (AAR) by making an application whether any particular thing done by the applicant with respect to any goods or services or both amounts to or results in supply of goods or services or both, within the meaning of that term, including the rate of tax, value of tax, etc. among other aspects of such transaction. 2.2 In terms of the aforesaid provision, the petitioner approached the AAR seeking ruling on the questions mentioned below: i. Whether the royalty paid in respect of Mining Lease could be classified as licensing services for Right to use minerals including its exploration a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r: 17. From the above, it is clear that even in cases where a rectification of mistake application is admitted and a mistake apparent on record is corrected, the original order is not set aside. The original order remains on record and only the mistakes are corrected therein. The principle of doctrine of merger will not apply in such cases. Any appeal can be made only against the original order which will be read together with the correction made in the rectification order. In this case, the rectification application was not admitted as there was no error apparent on record and hence, the original order stands without any changes. The ROM rejection order does not merge with the original advance ruling order. The original advance ruling stands without any corrections. The appeal should have been filed by the Appellant against the advance ruling order dated 21-09-2019 within the period of 30 days from the date of communication of the said order. 18. We also observe that in the instant appeal, the Appellant is aggrieved by the entire ruling pronounced by the lower Authority. All issues which were part of the original application for advance ruling are being contested in appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TRIES LTD., V. COMMISSIONER OF INCOME TAX, WEST BENGAL-V, AIR 1995 SC 1133 7. COMMISSIONER OF INCOME TAX V. TONY ELECTRONICS LIMITED. MANU/DE/2869/2009 8. TUKARAM KANA JOSHI AND ORS. THR. POWER OF ATTORNEY HOLDER V. M.I.D.C. AND ORS., AIR 2013 SC 565 9. JUMANA MATIWALA V. STATE OF MAHARASHTRA, 2015 SCC ONLINE BOM 997 10. INDIAN OIL CORPORATION LIMITED AND ORS. V. SUBRATA BORAH CHOWLEK AND ORS, (2010) 14 SCC 419 11. SRI KANAKA DURGA DEVELOPERS V. ASSTT. COMMR. OF S.T., BANGALORE, MANU/KA/2963/2017 12. APOTEX RESEARCH PVT. LTD. V. UNION OF INDIA, MANU/KA/3349/2016 13. PRACTICE STRATEGIC COMMUNICATIONS INDIA P. LTD. V. C.S.T., DOMLUR-2016 (45) S.T.R. 47 (KAR.) 4. On the other hand, the learned counsel appearing for the respondents-State vehemently argued before this court that the petitioner before this court did file an application for grant of advanced ruling on to 27.8.2018 and the AAR has passed an order on 21.09.2019. He has further stated that the petitioner/appellant was under an obligation to file an appeal within 30 days keeping in view the statutory provisions under the CGST Act, 2017 and if it is not preferred within 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in such form and manner and accompanied by such fee as may be prescribed, stating the question on which the advance ruling is sought. (2) The question on which the advance ruling is sought under this Act, shall be in respect of, (a) classification of any goods or services or both; (b) applicability of a notification issued under the provisions of this Act; (c) determination of time and value of supply of goods or services or both; (d) admissibility of input tax credit of tax paid or deemed to have been paid; (e) determination of the liability to pay tax on any goods or services or both; (f) whether applicant is required to be registered; (g) whether any particular thing done by the applicant with respect to any goods or services or both amounts to or results in a supply of goods or services or both, within the meaning of that term. 98. Procedure on receipt of application (1) On receipt of an application, the Authority shall cause a copy thereof to be forwarded to the concerned officer and, if necessary, call upon him to furnish the relevant records: PROVIDED that where any records have been called for by the Authority in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ruling sought to be appealed against is communicated to the concerned officer, the jurisdictional officer and the applicant: PROVIDED that the Appellate Authority may, if it is satisfied that the appellant was prevented by a sufficient cause from presenting the appeal within the said period of thirty days, allow it to be presented within a further period not exceeding thirty days. (3) Every appeal under this section shall be in such form, accompanied by such fee and verified in such manner as may be prescribed. 101. Orders of Appellate Authority (1) The Appellate Authority may, after giving the parties to the appeal or reference an opportunity of being heard, pass such order as it thinks fit, confirming or modifying the ruling appealed against or referred to. (2) The order referred to in sub-section (1) shall be passed within a period % of ninety days from the date of filing of the appeal under section 100 or a reference under sub-section (5) of section 98. (3) Where the members of the Appellate Authority differ on any point or points referred to in appeal or reference, it shall be deemed that no advance ruling can be issued in respect of the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er limit prescribed in the matter of limitation. In the present case, it has been provided under the statute that delay can be condoned only up to 30 days. In the considered opinion of this court, such application for rectification of the mistake was dismissed summarily there was no error apparent, hence, the doctrine of merger has not taken place. Therefore, the judgment relied upon does not help the petitioner in any manner. 9. Reliance has also been placed upon the judgment delivered in the case of Tony Electronics Limited (supra). In the aforesaid case, the Delhi High Court has specifically held that the original order had merged with the order of the appellate authority s order and accordingly, the limitation under sub-section (7) of section 154 would be relevant for passing order of rectification within the period of four years. The Supreme Court in the aforesaid case as held as under: .... Once we understand the Doctrine of Merger in its true sense, as explained above, and relying upon the interpretation given to the... had ceased to operate on the decision given by the CIT (A) and had merged with the orders of the appellate authority. The final orders passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulu (supra) and in view thereof we hold that the doctrine of merger would apply to the facts of the present case. The limitation, therefore, would start to run from the date of re-assessment order dated 19.03.2010 and since the notice under Section 154 was issued on 31.08.2012, it was well within the time stipulated under sub-section (7) of Section 154 of the Act . 12. This court has carefully gone through the aforesaid judgment. However, again it was the case under the Income Tax Act. No outer limit in respect of limitation was provided under the statute as provided under the CGST Act. There cannot be condonation of delay beyond the period of 60 days. Keeping in view the facts and circumstances of the case as doctrine of merger is not at all applicable. Hence, the judgment relied upon is again is of no help to the petitioner. 13. The cases relied upon by the learned counsel for the petitioner relate to those cases where the issue of doctrine of merger was involved and the cases relate to Income Tax Act or Central Excise Act, 1944. The provisions under both the Acts are not identical to the provisions dealing with limitation under the CGST Act, 2017. The provisions under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approach in the matter in reference to Article 226 of the Constitution. The principle underlying the rejection of such argument by this Court would apply on all fours to the exercise of power by the High Court under Article 226 of the Constitution. 15. We may now revert to the Full Bench decision of the Andhra Pradesh High Court in Electronics Corporation of India Ltd. (supra), which had adopted the view taken by the Full Bench of the Gujarat High Court in Panoli Intermediate (India) Pvt. Ltd. vs. Union of India Ors. and also of the Karnataka High Court in Phoenix Plasts Company vs. Commissioner of Central Excise (Appeal I), Bangalore . The logic applied in these decisions proceeds on fallacious premise. For, these decisions are premised on the logic that provision such as Section 31 of the 1995 Act, cannot curtail the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. This approach is faulty. It is not a matter of taking away the jurisdiction of the High Court. In a given case, the assessee may approach the High Court before the statutory period of appeal expires to challenge the assessment order by way of writ petition on the ground that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
