JUDGMENT

Piyush Agrawal, J.

Heard Shri Suyash Agarwal, learned counsel for the petitioner and learned ACSC for the State - respondent.

2. The present writ petition is being entertained in view of the fact that no GST Tribunal has been constituted in the State of U.P.

3. The present writ petition has been filed challenging the order dated 23.02.2021 passed by the Additional Commissioner, Grade - 2 (Appeals - 4), Ghaziabad by which the appeal of the petitioner has been dismissed on the ground of limitation.

4. The brief facts of the case are that the petitioner is a registered dealer and deals with the business of iron and steel. On 18.03.2018, while the goods were transported, the respondent no. 3 intercepted the goods and found that eway bill - 01 was not available with documents and consequently detained the goods and a notice was issued under section 129(3) of the UPGST Act directing the petitioner to deposit the tax and penalty. Aggrieved against the order dated 18.03.2018, the petitioner filed Writ Tax No. 500/2018, in which vide order dated 28.03.2018, an interim order was passed releasing the goods of the petitioner, along with vehicle. Ultimately, on 28.03.2018, the respondent no. 3 passed an order imposing tax amounting to Rs. 3,06,893/- and penalty amounting to Rs. 3,06,893/-. Against the order dated 28.03.2018, the petitioner preferred an appeal before the respondent no. 2 accompanied by delay condonation application, which has been dismissed by the impugned order dated 23.02.2021 on the ground of limitation.

5. Learned counsel for the petitioner submits that the original penalty order under section 129(3) of the UP GST Act was received on 26.06.2019; whereas, the original copy of the order was received by the erstwhile counsel, who did not file the appeal and therefore, the mistake on the part of the counsel, should not be treated adversely against the petitioner. He further submits that the order dated 28.03.2018 was served upon the local counsel, Shri Anil Jain, who did not communicate the said order to the petitioner. Therefore, an application was moved for getting the certified copy of the order on 26.06.2019 by another counsel, namely, Shri Rajeev Kumar Singh and on the same day, the appeal was preferred. He further submits that a bona fide mistake on the part of the counsel in pursuing a remedy is a good ground for condonation of delay in approaching the right forum in the right kind of proceedings.

6. He further submits that as per section 107 of the UP GST Act, the appeal can be preferred within three months from the date of communication of the order. The petitioner, being aggrieved person, for the first came to know about the order dated 28.03.2018 on 26.06.2019 and therefore, the appeal was within limitation. He further submits that in section 169 of the UP GST Act, various modes of service have been prescribed. The authorities were duty-bound to first serve the copy of the order upon the aggrieved person, i.e., the petitioner, and not upon his earlier counsel. He further submits that section 107 of the UP GST Act is to be read in consonance with section 169 of the UP GST Act, but the authorities have not consider the said aspect of the matter that the date of communication, as referred in section 107 of the UP GST Act, is the date when, for the first time, the petitioner came to know about the impugned order and being aggrieved on the very day, preferred an appeal, which has illegally been rejected as beyond limitation. He further submits