TMI Blog2022 (7) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... r would fail to submit certified copy of the order impugned in the appeal nor is there any provision restricting application of Section 5 of the Limitation Act, 1963, in the context of supply of certified copy within period stipulated in sub-rule (3) ibid - The requirement to furnish certified copy of the impugned order within seven days of filing of appeal is provided as a procedural requirement. It is apt to say that the Appellate Authority has not exercised its power in proper perspective and the Petitioner cannot be said to be indolent, rather he it has pursued its matter diligently - Petition allowed. - W.P.(C) No. 14163 of 2022 - - - Dated:- 29-6-2022 - JUSTICE KRUSHNA RAM MOHAPATRA AND JUSTICE MURAHARI SRI RAMAN Petitioner : Mr. Sudeepta Kumar Singh, Advocate Opposite Parties : Mr. Sunil Mishra, Additional Standing Counsel (CT GST Organisation) JUDGMENT BY THE COURT This matter is taken up by virtual/physical mode. 2. Questioning the propriety of the Order dated 23.05.2022 whereby the Joint Commissioner of CT GST, Cuttack-I Central Circle, Cuttack (opposite party No.2) rejected the Appeal bearing ARN#AD210421003076Y, filed on 21.04.2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said notice dated 13.05.2022, which was served on 20.05.2022, the Petitioner applied for and obtained certified copy of the required document on 21.05.2022 from the Office of Opposite Party No.3. Since the office of the Opposite Party No.2 was closed on 22.05.2022, being Sunday, step could only be taken on 23.05.2022 to comply with the terms of notice dated 13.05.2022. Although the Petitioner offered to submit the certified copy on 23.05.2022, the Opposite Party No.2 refused to receive the same on the plea that he had already passed the order of rejection of appeal and uploaded the same in the GST portal on 23.05.2022. 3.3. It is submitted by learned counsel that hyper-technical approach of the Appellate Authority rendered the Petitioner remediless inasmuch as there is no scope for approaching the Appellate Tribunal under Section 112 in view of the fact that as yet said Tribunal has not been constituted. 3.4. Learned counsel for Petitioner to buttress his argument placed reliance on the decision of this Court vide Order dated 07.06.2021 rendered in the case of Shree Jagannath Traders Vrs. Commissioner of State Tax, Odisha, Cuttack (W.P.(C) No.15061 of 2021). He further su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer to the following provisions so far as relevant for the present purpose: The OGST Act, 2017 The OGST Rules, 2017 107. Appeals to Appellate Authority.- (1) Any person aggrieved by any decision or order passed under this Act or the Central 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. (2) * * * (3) * * * (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 * * * allow it to be presented within a further period of one month. (5) Every appeal under this section shall be in such form and shall be verified in such manner as may be prescribed. (6) No appeal shall be filed under sub-section (1), unless the appellant has paid- (a) in full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him; and (b) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cally 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 under sub-rule (1) and a final acknowledgement, indicating appeal number shall be issued thereafter in Form GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf: Provided that where the certified copy of the decision or order is submitted within seven days from the date of filing the Form GST APL-01, the date of filing of the appeal shall be the date of issue of provisional acknowledgement and where the said copy is submitted after seven days, the date of filing of the appeal shall be the date of submission of such copy. EXPLANATION .- For the provisions of this rule, the appeal shall be treated as filed only when the final acknowledgement, indicating the appeal number is issued. 6.1. The provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in enclosing a certified copy of order appealed against along with the appeal should not come in the way of the Petitioner s appeal for being considered on merits by the Appellate Authority. This is a case of substantial compliance and the interests of justice ought not to be constrained by a hyper technical view of the requirement that a certified copy of the order appealed against should be submitted within one week of the filing of the appeal. To repeat, in these Covid times when there is a restricted functioning of Courts and Tribunals in general, a more liberal approach is warranted in matters of condonation of delay, which cannot be said to be extraordinary. 6.4. In this context this Court also takes note of the decision vide Order dated 10.06.2021 passed in Shree Udyog Vrs. Commissioner of State Tax, (W.P.(C) No.14887 of 2021), which is in similitude with that of Shree Jagannath Traders (supra). 6.5. It is ex facie clear from the copy of Memo of Appeal in Form GST APL-01 vide Annexure-2 series to the writ petition that having received the Order passed under Section 74 of the OGST Act on 20.01.2021, the Petitioner filed the appeal invoking Section 107 on 21.04.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction. 6.7. The Hon ble Supreme Court of India in the case of In Re: Cognizance For Extension Of Limitation being Miscellaneous Application No. 21 of 2022 : In Miscellaneous Application No. 665 of 2021 in Suo Motu Writ Petition (C) No. 3 of 2020 with Miscellaneous Application No.29 of 2022 in Miscellaneous Application No.665 of 2021 in Suo Motu Writ Petition (C) No. 3 of 2020. Vide Order dated 10.01.2022 [reported in (2022) 3 SCC 117 = (2022) 1 SCC (Cri) 580 = 2022 SCC OnLine SC 27] pronounced as follows: 1. In March, 2020, this Court took Suo Motu cognizance of the difficulties that might be faced by the litigants in filing petitions/ applications/ suits/ appeals/ all other quasi proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central and/or State) due to the outbreak of the COVID19 pandemic. 2. On 23.03.2020, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022. III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply. IV. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. 6. As prayed for by learned Senior Counsel, M.A. No. 29 of 2022 is dismissed as withdrawn. 6.8. If present case is considered in the light of aforesa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions are not applicable. The decision in Hongo India Private Limited (Commissioner of Customs and Central Excise Vrs. Hongo India Private Limited, (2009) 5 SCC 791) also turned on the scheme of the Excise Act. The scheme of the Excise Act is materially different than that of the Himachal Pradesh VAT Act. Thus, the decision in Hongo India Private Limited (supra) also cannot be said to be applicable to interpret the Himachal Pradesh VAT Act. As the revision under the Act of 2005 lies to the High Court, the provisions of Section 5 of the Limitation Act are applicable, and there is no express exclusion of the provisions of Section 5 and as per Section 29(2), unless a special law expressly excludes the provision, Sections 4 to 24 of the Limitation Act are applicable. When we consider the scheme of the Himachal Pradesh VAT Act, 2005, it is apparent that its scheme is not ousting the provisions of the Limitation Act from its ken which makes principles of Section 5 applicable even to an authority in the matter of filing an appeal but for the said provision the authority would not have the power to condone the delay. By implication also, it is apparent that the provisions of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax (Appeal), CT GST Territorial Range, Cuttack-I, Cuttack. 8. It is further directed that the Petitioner shall appear before the Joint Commissioner of State Tax (Appeal), CT GST Territorial Range, Cuttack-I, Cuttack on or before 11.07.2022 along with the certified copy of this order and submit the certified copy of the Order dated 20.01.2021 passed by the CT GST Officer, Cuttack-I Central Circle as claimed to have been obtained on 21.05.2022 and in that event the Appellate Authority shall proceed to decide the appeal on merits and make endeavor to dispose of the same by a reasoned order in accordance with law. 9. The writ petition is allowed to the extent as indicated hereinabove. Nothing stated in this writ application shall affect the merits of the case. However, before parting, anxious consideration is posed by reiterating the following words which have already been indicated by co-ordinate Bench of this Court in the case of Shree Jagannath Traders Vrs. Commissioner of State Tax, Odisha, Cuttack, W.P.(C) No.15061 of 2021, vide Order dated 07.06.2021: 14. Before parting with the case, this Court must note that it was brought to its attention that in other simila ..... X X X X Extracts X X X X X X X X Extracts X X X X
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