Point of Law: Appeal - Condonation of delay - Delay sufficiently explained on account of COVID.

JUDGMENT :

SANJAY KAROL, J.

1. Petitioner has prayed for the following reliefs:

“(i) For issuance of a writ in the nature of Certiorari or any other appropriate writ, order or direction to set aside the order dated 09.01.2021 (Annexure 7) passed in Appeal No. (ARN) AD100720000509R passed by the Respondent No. 2 the appellate authority, whereby the appeal of the petitioner was dismissed solely on the ground of delay without examining the merits of the case.

(ii) For issuance of the writ in the nature of Certiorari or any other appropriate writ, order or direction for quashing of order dated 20.01.2020 (Annexure 3) and 22.02.2020 (Annexure 5) passed by the Respondent No. 4 under section 73 of the GST Act and the consequent demand order dated 22.02.2020 (Annexure 5) issued against the petitioner for the period of April 2018 to March 2019 levying tax of Rs. 41,68,868/- (Rupees Forty one lakh sixty eight thousand eight hundred and sixty eight only) and interest of Rs. 5,00,264/- (Rupees Five lakhs two hundred and sixty four only) and penalty of Rs. 4,16,886/- (Rupees Four lakh sixteen thousand eight hundred and eighty six only).

(iii) Be pleased to stay the operation of impugned order and demand dated 22.02.2020 (Annexure 5) passed by the Respondent No. 4 against the petitioner, during the pendency of the writ application.

(iv) In alternate, be please to remand back the appeal of the petitioner to the appellate authority i.e. Respondent No. 2, after condoning the delay in filing the appeal which was due to covid-19 pandemic lockdown and restriction, and be pleased to direct Respondent No. 2 to decide the appeal of the petitioner on merit.”

2. It is brought to our notice that vide impugned order dated 9th of January, 2021 (Annexure-7) passed by the Additional Commissioner of State Taxes (Appeal), Purnea Division, Purnea, Bihar (Respondent No. 2), in Appeal Case No. (ARN) AD100720000509R, the appeal of the petitioner against the order dated 20.01.2020 (Annexure-3) passed by the Deputy Commissioner of State Tax, Purnea Division, Purnea (Respondent No. 4), order under Section 73 dated 22nd of February, 2020 in Reference No. ZA100220023953A (Annexure-5) and summary of the order in Form GST DRC-07 dated 22nd of February, 2020 has been rejected merely on the grounds of being barred by limitation. Both the orders were ex-parte in nature.

3. In our considered view, the delay stands sufficiently explained on account of COVID restrictions.

4. Learned counsel for the Revenue, states that he has no objection if the matter is remanded to the Appellate Authority for deciding the appeal afresh. Also, while considering and deciding the appeal, the ground of delay shall not be taken into account and the appeal shall be decided on merits. Also, during pendency of the appeal, no coercive steps shall be taken against the petitioner.

5. Statement accepted and taken on record.

6. Having heard learned counsel for the parties as also perused the record made available, we dispose of the present petition in the following mutually agreeable terms:

(a) We quash and set aside the impugned order dated 9th of January, 2021 (Annexure-7) passed by the Additional Commissioner of State Taxes (Appeal), Purnea Division, Purnea, Bihar (Respondent No. 2), in Appeal Case No. (ARN) AD100720000509R.

(b) The appeal is restored to its original file and number.

(c) We accept the statement of the petitioner that ten per cent of the total amount, being condition prerequisite for hearing of the appeal, already stands deposited. If that were so, the appeal shall be decided on merits. However, if the amount is not deposited for whatever reasons, same shall be done before the next date.

(d) This deposit shall be without prejudice to the respective rights and contention of the parties and subject to the order passed by the Appellate Authority. However, if it is ultimately found that the petitioner’s deposit is in excess, the same shall be refunded within two months from the date of passing of the o