Back
2022 Supreme(All) 474
IN THE HIGH COURT OF ALLAHABAD
SAUMITRA DAYAL SINGH, J.
M/s Brij Bihari Singh, Through Its Proprietor Shri Bihari Singh - Petitioner
Versus
Commissioner Commercial Tax Lucknow and Another - Respondents
Writ Tax No. 902 of 2021
Decided On : 04-05-2022
For the Petitioner: Pooja Talwar.
For the Respondent: C.S.C.
Point of Law : Statutory right of appeal is not an illusory remedy given to the assessee or a person aggrieved. It is an effective and real remedy granted within the structure of the statute to allow for redressal of genuine grievances.
Headnote:
U.P. GST Act, 2017 - Section 107, 29 - Cancelling registration - Appeal filed by against order - Appeal filed by petitioner against the order, passed by Proper Officer, cancelling petitioner's registration, under Section 29 of the U.P. GST Act, 2017 - Statutory right of appeal is not an illusory remedy given to the assessee or a person aggrieved. It is an effective and real remedy granted within the structure of the statute to allow for redressal of genuine grievances. (Para 11).
Findings of the Court :
On a technical construction of statute, period of limitation to file an appeal against order may appear to run from date of order being communicated to petitioner i.e. itself - At same time, that construction has to be rejected - It is so because, against order no appeal could have been filed by petitioner as it remained completely prevented/obstructed from filing such appeal, owing to technical glitches suffered by GSTN portal on which that appeal may have been filed - In face of clear evidence existing on record that such technical glitches were resolved by GSTN authority on period of limitation to file appeal started running from that date only - For period of limitation to file appeal must always be deemed to have remained suspended for reason of appeal forum being not made available for filing of appeal by petitioner, through prescribed mode.
Result : Writ petition is allowed.
JUDGMENT :
1. Heard Ms. Pooja Talwar, learned counsel for the assessee and learned Standing Counsel for the revenue.
2. Challenge has been raised to the order passed by the Additional Commissioner, Grade-2 (Appeal), Commercial Tax, Sonbhadra dated 12.10.2021 in Appeal No. GST-47 of 2021 for the period 2019-20. By that order, that Appeal Authority has rejected as time barred the appeal filed by the petitioner against the order dated 28.02.2019, passed by the Proper Officer, cancelling the petitioner's registration, under Section 29 of the U.P. GST Act, 2017 (hereinafter referred to as the Act).
3. Having heard learned counsel for the parties and having perused the record, it transpires, the petitioner's registration under the Act was sought to be cancelled vide notice dated 28.02.2019. The petitioner submitted his reply thereto on 12.03.2019. However, in absence of the petitioner, the said registration was cancelled by an ex parte order dated 09.08.2019. Here, it is not in dispute that the petitioner was served with a copy of that order at the relevant time through the GSTN portal.
4. It is the grievance of the petitioner, despite best efforts, he could not file an appeal against that order for reason of continued malfunctioning/errors in the functioning of the GSTN portal (through which the appeal was to be filed). Evidence was led by the petitioner to establish the continued difficulties faced by him. Thus, print of screen shots (of certain dates when the petitioner attempted to file that appeal), were brought on record in the first appeal, eventually filed on 20.09.2021.
5. The error arising in the working of the GSTN portal was resolved on 17.09.2021. Thereupon, the petitioner received the Ticket No. G2021090862061. The petitioner further received an e-mail from the GSTN authorities on 20.09.2021, informing him of the resolution made to the error in the working of the GSTN portal. The petitioner instituted the appeal through the GSTN portal on 20.09.2021.
6. At that stage, perhaps because the resolution offered by the GSTN portal, the order dated 28.02.2019 came to be displayed (again) on the GSTN portal, with a fresh Reference No. ZA090819050330H with date 17.09.2021. A copy of the same has been filed as Annexure No. 5 to the writ petition.
7. Whatever be the exact nature of communication sought to be made by the GSTN portal, it cannot be disputed that there exists clear evidence of admission made by the GSTN authority of difficulty faced by the petitioner in instituting his appeal against the order dated 28.02.2019, within the normal period of limitation, computed from the date of that order. Also, there is clear evidence of the said difficulty having been first resolved on 17.09.2021, well after expiry of the statutory period of limitation and the extended period of limitation, to file the appeal under Section 107 of the Act.
8. For ready reference, relevant extract of Section 107 of the Act reads as below :
"Section 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, 2017 (Act No. 12 of 2017) 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) The Commissioner may, on his own motion, or upon request from the Commissioner of central tax, call for and examine the record of any proceeding in which an adjudicating authority has passed any decision or order under this Act or the Central Goods and Services Tax Act, 2017 (Act No. 12 of 2017) for the purpose of satisfying himself as to the legality or propriety of the said decision or order and may, by order, direct any officer subordinate to him to apply to the Appellate Authority within six months from the date of communication of the said decision or order for the determination of such points arising out of the said decision or order as may be spec
