Calcutta HC: Assessee Can File Time-Barred Appeal as GST DRC-01 Not Seen on Portal

The department submitted the Form GST DRC-01 to the GST Portal but it was not noticed by the assessee. Therefore, the Calcutta High Court permitted the time-barred appeal.

The assessee, SSB Petro Products & Ors questioned the instructions dated 16-01-2023 issued in WPA 29 of 2023. The applicant had questioned the directive cleared by the Senior Joint Commissioner, State Tax, Howrah Circle which was dated 21-11-2022 declining the appeal submitted by the applicant as time-barred.

The first respondent served the appellants with an indication of the tax as considered to be payable under Sections 73(5) and 74(5) of the Goods and Services Tax Act dated 5.03.2021. The grounds and quantification were stated in the aforementioned announcement, which is in Form GST DRC-01A. The appellants were advised to pay the ascertained tax as well as the appropriate amount of interest and penalty under Section 74(5) of the Act.

Under Section 74(1) of the Act, a show cause notice was issued, and on 8.03.2021, the appellants responded to the notice. The case was left pending and not concluded further.

Consequently, the second respondent issued Form GST DRC-01 (under Rule 142(1)(a) of the GST Rule) dated 16.09.2021. The appellant argued that he was unaware that the notification had been uploaded in the portal and that he only learned of it after the amount of Rs. 1,84,930 was deducted from their electronic credit ledger. The appellants, thereafter, applied a copy of the directive and favoured their appeal, but by that point, the appeal’s statute of limitations had already expired.

When the first respondent was in charge of the situation, the court was asked whether the second respondent could have started new legal action. This question was neither considered nor rejected, so it was left unresolved.

According to settled law, the first respondent was required to evaluate the representation or reply and, if unsatisfied, proceed to issue a show cause notice under Section 74(1) of the Act. However, the first respondent chose not to do so, and the matter was left open-ended.

When the first respondent’s proceeding for the same sum on the same allegation was not brought to a logical conclusion, the second respondent could not have started the preliminary proceedings. The first respondent gave up the case while the statutory appeal was pending before the appellate authority.

It was clear that the first proceedings commenced by the first appellant had concluded only on 23.01.2022 and on the said date, the appeal against the second proceedings commenced by the second respondent was already pending before the appellate authority.

The bench comprises two judges, Acting Chief Justice T. S. Sivagnanam and Justice Hiranmay Bhattacharyya noted that since the appellants had responded to the initial indication, the appeal should not be viewed as time-barred. The Court overruled the directive issued by the appellate authority and reinstated the issue to the file of the appellate authority with an instruction to hear and disapprove of the appeal on the grounds and as per the law.