The High Court of Patna directed the lower authority to consider the appeal which failed to file within the prescribed time limit mentioned under section 107 of the CGST Act, 2017, relying on the Goods and Service Tax ( GST ) Notification for condoning delay. The court found that the notification itself was brought out on 02.11.2023 and in such circumstances any order passed in at least three months before that date; the time provided for filing an appeal, ought to have been considered for such beneficial treatment.
Mali Tractors Private Limited, the petitioner is aggrieved with the assessments made for the assessment years 2017-18 and 2018-19
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respectively. The petitioner challenged the assessment order and appellate order. The Counsel for the petitioner pointed out that with respect to the very same issue the petitioner was first issued a notice under Section 60(1) of the Central/Bihar Goods and Services Tax Act, 2017 (the Act) after scrutiny of returns, which was replied to by the petitioner.
The notice was issued only since there was discrepancy in GSTR-1; monthly sales return and GSTR-3B; monthly returns comprising of the sales, input tax and the output tax payable. The discrepancy occurred only because of double entry of certain invoices for the months of September and October, 2017; when the GST regime had just commenced.
A notice was issued under Section 73(1)of BGST Act which was dropped as per the order. A further notice as was issued on audit, in pursuance to which also the petitioner filed a reply, which was accepted by the Audit Authority. The petitioner’s contention with respect to the assessment order has to be properly agitated in an appeal. The assessment order itself was dated 23.06.2023 which was not appealed within the time provided for under Section 107 of the CGST Act; within the four month period provided.
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The Central Board of Indirect Taxes and Customs came out with Notification No. 53 of 2023, which provided for a window of filing an appeal with respect to orders which were passed prior to 31.03.2023. The time provided was up to 31.01.2024 and there was an additional condition that admitted tax plus 12.5% of the amounts in demand, shall be paid through the Electronic Cash Ledger. The petitioner filed an appeal on 20.01.2024 and complied with the condition of payment of admitted tax and deposit of 12.5% also. However, the petitioner’s appeal stood dismissed as on the finding that the assessment order was dated on 23.06.2023 after 31.03.2023.
The difficulty insofar as its application to the petitioner’s case is the date on which the proper officer, being the Assessing Officer, having passed the order which was challenged in appeal, on 27.04.2023. The notification which was brought out on 02.11.2023 only permits appeals to be filed from orders passed by the proper officer on or before 31.03.2023, in cases in which it was not instituted in time or within the time permitted for a delayed appeal, and in cases where such delayed appeals beyond the stipulation in 107(4) has been rejected. The petitioner would not squarely fall under the notification.
The court found that the notification itself was brought out on 02.11.2023 and in such circumstances any order passed in at least three months before that date; the time provided for filing an appeal, ought to have been considered for such beneficial treatment.
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The Chief Justice K. Vinod Chandran and Justice Partha Sarthy directedd the Appellate Authority to consider the appeal on merits and set aside the order. Further held that “The petitioner shall appear before the AppellateAuthority with the copy of the judgment on 06.01.2025. On that date or on any other date fixed; with acknowledgement duly taken from the assessee or the authorized representative, the appeals shall be heard and disposed off on merits.”
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