The Calcutta High Court allowed the filing of the time-barred appeal since Form GST DRC01 was uploaded to the GST Portal by the department which was failed to notice by the assessee.
SSB Petro Products & Ors., the petitioner challenged theorder dated 16.01.2023 passed in WPA 29 of 2023. The appellants had challenged the order passed by the Senior Joint Commissioner, State Tax, Howrah Circle dated 21.11.2022 rejecting the appeal filed by the appellant as time barred.
The appellants were served with an intimation of the tax ascertained as being payable under Sections 73(5) and 74(5) of the Goods & Services Tax Act dated 05.03.2021 by the first respondent. In the said intimation which is in Form GST DRC-01A, the grounds and quantification were mentioned and the appellants were advised to pay the tax ascertained along with the amount of applicable interest and penalty under Section 74(5) of the Act.
A show cause notice was issued under Section 74(1) of the Act and the appellants filed their reply to the show cause notice on 08.03.2021. The matter was not adjudicated further and was kept pending. Thereafter, the second respondent issued Form GST DRC01 (under Rule 142(1)(a) of the GST Rules) dated 16.09.2021.
It was argued by the appellant that he was not aware of the said notice for being uploaded in the portal and they came to know of the same only after the sum of Rs. 1,84,930/- was paid from their electronic credit ledger and immediately thereafter, the appellants applied for a copy of the order and thereafter preferred the appeal but by then the period of limitation for filing the appeal had expired.
The question before the court was whether the second respondent could have initiated fresh proceedings when the first respondent was seized of the matter and they neither considered nor rejected which was kept pending.
It was settled law that the first respondent was to consider the representation/reply and if not satisfied, could have proceeded to issue show cause notice under Section 74(1) of the Act which option the first respondent did not exercise and the matter was left to linger.
The preliminary proceedings could not have been initiated by the second respondent when the proceeding initiated by the first respondent for the very same amount on the very same allegation was not taken to the logical end. When the statutory appeal was pending before the appellate authority, the first respondent dropped the proceedings.
It was evident that the first proceedings initiated bythe first respondent had attained finality only on 23.01.2022 and on the said date, the appeal against the second proceedings initiated by the second respondent was already pending before the appellate authority.
The two-judge bench comprising Acting Chief Justice T. S. Sivagnanam and Justice Hiranmay Bhattacharyya observed that the appeal should not be treated to be as time-barred, since the appellants had responded to the first intimation.
While allowing the appeal and writ petition, the Court set aside the order passed by the appellate authority and restored the matter to the file of the appellate authority with a direction to hear and dispose of the appeal on merits and following the law.
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