TMI Blog2021 (12) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... 108 provides that the appeal under sub-section (1) of Section 107 shall be filed in Form GST APL-01, along with the relevant documents, either electronically or as notified by the Commissioner. Sub-rule (3) provides that a certified copy of the decision or order appealed against shall be submitted within seven days of filing the appeal under sub-rule (1) - proviso to sub-rule (3) of Rule 108 stipulates the consequence of filing the certified copy within seven days and also the consequence of filing the certified copy after seven days from the date of filing of appeal. In the present case, having regard to the express provisions of sub-Section (1) and (4) of Section 107 of the said Act, we have no manner of doubt, that for the purpose of limitation, the date of communication of the impugned assessment order is to be regarded as April 20, 2019 viz the date on which the order was sent by email to the petitioner - the petitioner failed to avail of the remedy provided by the said Act for filing of an appeal within the period prescribed and therefore rightly not accepted and entertained by the appellate authority beyond the extended statutory limitation period of one month in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The physical true copy of the assessment order dated April 20, 2019 was not served on the petitioner nor was the same uploaded on the GSTN portal. The scanned copy of the impugned assessment order dated April, 20, 2019 was sent by email dated April 20, 2019 to the General Manager of the petitioner company. This email communication remained to be reported by the General Manager to the management of the petitioner company. The petitioner filed GSTR-3B for the month of February 2019 on June 14, 2019 on the basis of actual books of accounts. At the time of filing of the GSTR- 3B for the month of February 2019, the petitioner company was not aware of the impugned assessment order. The petitioner came to know about the impugned assessment order only when their bank account came to be attached on July 1, 2019. The petitioner applied for certified true copy of the impugned assessment order on November 5, 2019. As the impugned assessment order was not available online, the petitioner had to file physical appeal by obtaining certified true copy on November 6, 2019. The petitioner even tried to file online appeal on the GSTN portal on January 10, 2020, after the order was uploaded on GSTN po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel relied upon the decision of the Gujarat High Court in the case of Gujarat Tate Petronet Limited Vs. Union of India 2020-VIL-426-GUJ in support of his submission. 4. Learned AGP appearing on behalf of Respondent nos.1, 3 to 5, on the other hand, supported the action on the part of the respondent no.5 in refusing to accept and entertain the appeal on account of the mandate of subsection (1) and (4) of Section 107 of the said Act. Learned AGP submitted that admittedly the scanned copy of the impugned assessment order dated April 20, 2019 having been sent by email to the petitioner on April 20, 2019, the resultant failure on the part of the petitioner to avail the remedy of appeal within a period of three months as contemplated by sub-section (1) of Section 107 of the said Act or within the extended period of one month provided under sub-section (4) of Section 107 of the said Act, disentitles the petitioner from claiming any relief in this writ petition. It is the submission of learned AGP that, consequently, the statutory remedy of appeal had become time barred. Learned AGP further submitted that it is not now open for the petitioner to challenge the impugned asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is available or which he has gathered and issue an assessment order within a period of five years from the date specified under section 44 for furnishing of the annual return for the financial year to which the tax not paid relates. 7. Sub-section (1) of Section 107 of the said Act provides that any person aggrieved by an order passed under Section 62(1) of the said Act may appeal to the appellate authority (in the present case the appellate authority being the respondent no.5) within the period of 30 days from the date of communication of the order. The relevant provisions of Section 107 germane for the present case reads as under :- 107. (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. (4) The Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into it which is not there. This is precisely what learned counsel for the petitioner wants us to do. The submission of learned counsel for the petitioner that except for communication of the impugned assessment order on the GSTN portal, all other communications are to be disregarded for the purpose of sub-section (1) of Section 107 of the said Act, is fallacious and too far fetched. 10. We may then take a note of Chapter XIII of the Maharashtra Goods and Services Tax Rules, 2017 (hereafter the Rules for short) which deals with appeals and revisions. Sub-rule (1), (2) and (3) of Rule 108 reads as under :- 108 (1) An appeal to the Appellate Authority under subsection (1) of section 107 shall be filed in FORM GST APL 01, along with the relevant documents, either electronically or otherwise as may be notified by the Commissioner, and a provisional acknowledgement shall be issued to the appellant immediately. (2) The grounds of appeal and the form of verification as contained in FORM GST APL 01 shall be signed in the manner specified in rule 26. (3) A certified copy of the decision or order appealed against shall be submitted within seven days of filing the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is submitted after seven days, the date of filing of the appeal shall be the date of submission of such copy. It is also relevant to refer to the explanation under sub-rule (3) which provides that for the provisions of Rule 108, the appeal shall be treated as filed only when the final acknowledgment, indicating the appeal number, is issued. Rule 108 no doubt prescribes that the appeal has to be filed electronically, but it no where prescribes that the same is to be filed only after impugned assessment order is uploaded on GSTN portal online. On the contrary, at the time of filing the appeal electronically, it is not even the requirement that the certified copy of the decision of the appeal is to be submitted, for the certified copy of the impugned assessment order can be submitted within seven days of filing the appeal. The proviso to sub-rule (3) of Rule 108 stipulates the consequence of filing the certified copy within seven days and also the consequence of filing the certified copy after seven days from the date of filing of appeal. 13. We may also note the statutory command by the legislation as regards limitation and there is the postulate that the delay can be condoned f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry nature. To put it in a different way, the prescription of limitation in a case of present nature, when the statute commands that this Court may condone the further delay not beyond 60 days, it would come within the ambit and sweep of the provisions and policy of legislation. It is equivalent to Section 3 of the Limitation Act. Therefore, it is un-condonable and it cannot be condoned taking recourse to Article 142 of the Constitution. 14. We may then refer to paragraph 21 of the decision in Assistant Commissioner (CT) LTU, Kakinada (supra) which reads thus :- 21. A priori, we have no hesitation in taking the view that what this 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 this Court would apply on all fours to the exercise of power by the High Court under Article 226 of the Constitution. 15. We now advert to the exposition of the Hon ble Supreme Court in the case of Titaghur Paper Mills Co. Ltd vs State Of Orissa, which f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Grant Co. Ltd. (1935 AC 532) and Secretary of State v. Mask Co. (AIR 1940 PC 105). It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine. 16. In the present case, having regard to the express provisions of sub-Section (1) and (4) of Section 107 of the said Act, we have no manner of doubt, that for the purpose of limitation, the date of communication of the impugned assessment order is to be regarded as April 20, 2019 viz the date on which the order was sent by email to the petitioner. In the facts of this case, having regard to the express and unambiguous language of sub-section (1) of Section 107 of the said Act, we do not find any force in the contention of learned counsel for the petitioner, that the date of uploading of the impugned assessment order on the GSTN portal has to be regarded as the date of communication for the purpose of calculating limitation. We have no hesitation in holding that the petitioner failed to avail of the remedy provided by the said Act for filing of an appeal within the period prescribed and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for condonation of delay, whereon the appeal may be entertained. Learned counsel for the Revenue has stated before us that the Revenue will not object to the entertainment of the appeal on the ground that it is barred by time. In view of this direction and concession, the petitioner will have an effective alternative remedy by way of an appeal. (emphasis supplied) 25. In that case, it appears that the writ petition was filed within statutory period and legal remedy was being pursued in good faith by the assessee (appellant). 26. Suffice it to observe that this decision is on the facts of that case and cannot be cited as a precedent in support of an argument that the High Court is free to entertain the writ petition assailing the assessment order even if filed beyond the statutory period of maximum 60 days in filing appeal. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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