ORDER :

SONIA GOKANI, J.

1. This petition is filed under Article 226 of the Constitution of India seeking to challenge the order dated 28.9.2022 passed by Deputy State Tax Commissioner, Appeal -1, Division 1, Ahmedabad with the following prayers:

8) In view of the above, the Petitioner humbly prays that:-

(A) YOUR LORDSHIPS may be pleased to issue a writ of Mandamus and/or any other appropriate writ, order or direction quashing and setting aside the order dated 28.09.2022 by the Ld. Deputy State Tax Commissioner, Appeal - 1, Division - 1, Ahmedabad under Section 107 of the Gujarat Goods and Services Tax Act, 2017;

(B) YOUR LORSHIP may be pleased to condone the delay caused in preferring the appeal against the order dated 25.03.2022 and restore the Appeal filed- by the Petitioner in Form No. GST APL - 01 dated 17.09.2022 and direct the First Appellate Authority to hear the Appeal on merits of the case;

(C) During pendency and final disposal of this petition, YOUR LORDSHIPS may be pleased to stay the effect, operation and implementation of the order dated 28.09.2022 passed u/s 107 of the Gujarat Goods and Service Tax Act, 2017;

(D) Such other and further relief/s as may be deemed just in the facts and circumstances of the present case may kindly be granted;”

2. This Court had issued notice on 13.10.2022 and learned AGP Ms. Pooja Asher appeared for and on behalf of the State. She has also received the instructions from the concerned officer.

3. It emerges from the record that the return of the petitioner was selected for scrutiny under Section 61 of the Gujarat Goods and Service Tax Act, 2017 (for short “GST Act”). The correctness of the return, the respondent authority had attempted to verify and having found the discrepancy it intimated the same to the petitioner. He was called upon to explain the same. The petitioner could not respond to the discrepancy as the E-mail was sent to his Chartered Accountant and the issuance of notice under Section 61 of the GST Act also was not brought to his notice.

3.1. He, therefore, failed to reply to the notice of 15th July, 2021. The respondent authority therefore, had ascertained the tax payable under Section 73(5) of the GST Act raising a demand of Rs. 72,92,765/- (Rupess Seventy Two Lakhs Ninety Two Thousand Seven Hundred Sixty Five) and the petitioner continued to remain unaware of these proceedings.

4. The show cause notice was issued by the respondent authority under the FORM GST APL-01 has been shortly paid and sought an explanation. This according to the petitioner is an ex-parte assessment and the demand. Petitioner also was not aware of filing of the appeal before the First Appellate Authority under Section 107 of the GST Act within the time prescribed under the Act. His bank account has been attached on 6.9.2022. The appeal preferred being in the FORM No. APL-01 on 17.9.2022. The petitioner has paid the pre-deposit being 10% of the tax in dispute arising from the order of 22.3.2022. The appellant authority vide order dated 28.9.2022 passed an order rejecting the appeal on the ground that it was preferred beyond the period of limitation. Before his constraint to approach this Court urging this Court to allow him to go first to Appellant Authority and ventilate all his grievances which are very genuine.

“Section 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 six months, as the case may be, allow it to be presented within a further period of one months.”

5. We notice from the provision that the appellate authority co