2024(02)LCX0236
Visible Alpha Solutions India Private Limited
Versus
COMMISSIONER CGST APPEALS
WRIT TAX NO. 83 OF 2024 decided on 12-02-2024
THE HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Present:
The Hon’ble Justice Shekhar B. Saraf
WRIT TAX NO.83 OF 2024
VISIBLE ALPHA SOLUTIONS INDIA PRIVATE LIMITED
v.
COMMISSIONER, CGST APPEALS, NOIDA AND ANOTHER
For the Petitioner : Mohit Gupta, Advocate
For the Respondents : Amit Mahajan, Advocate
1. Heard Sri Mohit Gupta, learned counsel appearing on behalf of the petitioner and Sri Amit Mahajan, learned counsel appearing on behalf of the respondents.
2. This is a writ petition under Article 226 of the Constitution of India wherein the petitioner is aggrieved by the order dated October 18, 2023 passed by the respondent No.1/Commissioner, CGST (Appeals), NOIDA rejecting the two appeals filed by the petitioner on the ground that the same were time barred, as the self-certified copy of the decision or order was not made available within time as per proviso to Rule 108 of the Central Goods and Services Tax Rules, 2017 (hereinafter referred to as "the Rules").
3. Learned counsel appearing on behalf of the petitioner has referred to Rule 108 of the Rules to indicate that when the appeal is filed electronically and uploaded on the common portal in FORM GST APL-01, there is no requirement to file self-certified copy of the decision. Both the proviso to Rule 108 of the Rules apply only in the case when the appeal is not uploaded on common portal. Rule 108 of the Rules is delineated below for clarification:
"108. Appeal to the Appellate Authority.- (1) An appeal to the Appellate Authority under sub-section (1) of section 107 shall be filed in FORM GST APL-01, along with the relevant documents, either electronically 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) Where the decision or order appealed against is uploaded on the common portal, a final acknowledgement, indicating appeal number shall be issued in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf and the date of issue of the provisional acknowledgement shall be considered as the date of filing of appeal:
Provided that where the decision or order appealed against is not uploaded on the common portal, the appellant shall submit a self-certified copy of the said decision or order within a period of seven days from the date of filing of FORM GST APL01 and a final acknowledgement, indicating appeal number, shall be issued in FORM GST APL-02 by the Appellate Authority or an officer authorised by him in this behalf, and the date of issue of the provisional acknowledgement shall be considered as the date of filing of appeal:
Provided further that where the said self-certified copy of the decision or order is not submitted within a period of seven days from the date of filing of FORM GST APL-01, the date of submission of such copy shall be considered as the date of filing of appeal."ť
1[4. Various High Courts have held
that when an assessee files a memo of appeal in the GST Portal, non submission
of certified copy would be treated as mere technical defect and the appeal
should not be dismissed on the sole ground of non submission of certified copy
within time. The Orissa High Court in the case of Atlas PVC Pipes Ltd. vs. State
of Odisha reported in 2022 (65) G.S.T.L. 45 (Ori.) held as follows:-
“6.13 On the altar of default in compliance of such a procedural requirement,
merit of the matter in appeal should not have been sacrificed. Since the
petitioner has enclosed the copy of impugned order as made available to it in
the GST portal while filing Memo of Appeal, non-submission of certified copy, as
has rightly been conceded by the Additional Standing Counsel appearing on behalf
of CT&GST Organisation, is to be treated as mere technical defect.”
4(i). Furthermore, the High Court of Madras in the case of PKV Agencies vs.
Appellate Dy. Commissioner (GST) (Appeals), Vellore reported in 2023 (73)
G.S.T.L. 71 (Mad.) held as follows:-
“5. In the aforesaid decision of the Orissa High Court also, the petitioner
assessee had filed an appal under Section 107 of the Odisha Goods and Services
Tax Act, 2017, electronically on time, but did not furnish a certified copy of
the impugned order, within seven days of filing of the appeal as prescribed
under the proviso to Rule 108(3) of the OGST Rules. After giving due
consideration to all the relevant provisions of the OGST Act/Rules, the Orissa
High Court has held that since Rule 108(3) has not prescribed for condonation of
delay in the event where the petitioner fails to submit the 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 the period stipulated in sub-rule (3) of Rule 108, the
requirement to furnish certified copy of the impugned order within seven days of
filing of appeal is only a procedural requirement, which can be condoned by
exercising powers under Article 226 of the Constitution of India as it is only a
technical defect.”
4(ii) Keeping in mind the judgments passed by these High Courts and upon
examination of Section 107 of the Central Goods and Services Tax Act, 2017 read
with Rule 108 of the Central Goods and Service Tax Rules, 2017, I am of the view
that mere non filing of the certified copy of the decision within a period of
seven days, when the appeal has been filed electronically within the time frame
prescribed, that is, three months, the authority should not dismiss the appeal
on the ground that the certified copy of the decision was not filed within
time.]
5. In light of the above, the impugned order dated October 18, 2023 is quashed and set aside with a direction upon the appellate authority to de novo hear the appeals filed by the petitioner and pass a reasoned order on merits within a period of three months from date.
6. With the aforesaid directions, the writ petition is allowed.
Date: 12.02.2024
(Shekhar B. Saraf, J.)
1 Substituted vide Judgement dated 12.03.2024