The Patna High Court in a recent ruling has overturned the dismissal of the GST petition and reinstated the petition, contingent on fulfilling the mentioned conditions shown in Notification No. 53 of 2023-Central Tax.
Stressing the importance of complying with the legal timeliness at the time of considering the chance furnished via the related notifications to revive the dismissed petitions under the particular conditions, the division bench of Chief Justice K. Vinod Chandran and Justice Rajiv Roy mentioned that
“In this context, noticing the Notification, we also make it clear that wherever we have rejected the writ petitions filed against orders; rejecting appeals for reason of delay being beyond that prescribed under Section 107(4) of the BGST Act; the assessee would be entitled to invoke the said remedy de hors the orders of this Court and avail of the benefit of Notification aforementioned, subject to the conditions therein being satisfied.”
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“The Commissioner, State Taxes, Government of Bihar shall issue necessary instructions to the officers empowered under the Act to carry out assessment and also consider appeals about the orders of this Court, which permits appeals to be restored on the conditions in this Notification being scrupulously complied with even in cases where this Court has rejected the writ petitions filed against the dismissal of the delayed appeals, solely on the ground of delay occasioned,” the Court said.
The aforesaid ruling came in a writ petition contesting an order in an appeal filed under the Bihar Goods and Services Taxes Act, 2017, for conciseness, (BGS act) which was dismissed based on delay.
GST Under Section 107 of the BGST Act provides for 3 months to file a petition and a further time of one month in which an appeal can be filed with a satisfactory explanation for the late occasion.
The petition filed in the aforesaid case gets rejected was beyond even the 1-month duration given under section 107 of the BGST act.
If there is a certain duration given in the regulation within which the duration gets delayed petition can be filed then neither the appellate authority nor the court under Article 226 of the constitution of India can favor the delay beyond the given duration, the High Court and the Supreme Court said previously.
The Court signifies that as per Notification No. 53 of 2023- Central Tax, on 02.11.2023 (S.O. 4767(E)), issued by the Central Board of Indirect Taxes and Customs, the time for filing a petition against orders made by the Proper Officer under Sections 73 and 74 of the BGST Act, due on or before 31.03.2023, has been extended.
Such extension exceeds the time duration of 1 month stipulated under Section 107(4) of the BGST Act to file the petitions furnished the special process shown in the aforesaid notification is complied with, the court noted.
The court stressed that the petition against the orders under section 73 or 74 should not be provided by 31.01.2024. It moreover considered that petitions that are under process before the related authority shall be acknowledged valid despite when there was a late filing as long as they complied with the process shown in the notification.
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The Court observed that “However, the maintainability of the appeal is further regulated by paragraph no. 3 which requires that the admitted tax, interest, fine, fee and penalty arising from the impugned order is paid up along with a sum equal to 12.5% of the remaining amount of tax in dispute arising from the said order subject to a maximum of twenty-five crore rupees; out of which 12.5%, 20% should have been paid by debiting from the Electronic Cash Ledger. The further conditions in paragraphs no. 4 to 6 also shall be applicable.”
The petition has been submitted and nextly dismissed via the initial appellate authority, the court stressed. Provided the same context the court considered the same suitable to reinstate the appeal to the Authority’s records, contingent upon fulfilling the requirements summarized in paragraph no. 3.
The Court ruled, “Hence the petitioner would be entitled to satisfy paragraph no. 3 of the aforesaid Notification by paying up the deficient amounts as would be required to maintain the appeal under the notification.”
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“We specifically say the deficient amount, since on filing the appeal 10% of the amount of tax in dispute arising from the order impugned would/ought to have been remitted,” the Court said while permitting the appeal.
The impugned order has been set aside by the court and rendered the taxpayer to meet the above-said conditions before the said time in notification i.e. 31.01.2024, in which event the petition would be opted and acknowledged on merits. As per the court when the conditions shall not be fulfilled, the petition needs to get rejected or stands rejected.
| Case Title | M/s Micro Zone vs The Union of India and Ors |
| Case No. | 5687 of 2023 |
| Date | 09.11.2023 |
| For the Petitioner/s | Mr. Anurag Saurav, Advocate |
| For the Respondent/s | Dr. K.N. Singh, ASG |
| Patna High Court | Read Order |
