SRM Engineering Construction Corporation Limited Vs Assistant Commissioner (ST) (FAC)
Date: August 23, 2023
Subject Matter
Delay in filing appeal for operational decline, staff turnover condoned
Summary
The petitioner challenged an impugned assessment order dated 23.02.2023, which was issued due to a mis-match between the GSTR1 and GSTR 3B, as well as differences in Input Tax Credit (ITC) between GSTR 3B and GSTR 2A. The petitioner failed to respond to the notice issued in GST DRC 01, leading to the issuance of the impugned order. The period for filing an appeal expired, but the petitioner filed a writ petition with a delay of 58 days. The petitioner provided an explanation for the delay, citing operational decline, staff turnover, and lack of attention to the GST portal. The court, considering the explanation, condoned the delay and directed the petitioner to file a statutory appeal within 30 days. The court also directed the petitioner to pre-deposit the required amount as per Section 107 of the GST Act, 2017. The writ petition was disposed of with no costs.
FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT
Mrs. K. Vasanthamala, learned Government Advocate takes notice on behalf of the respondent.
2. The petitioner has challenged the impugned Assessment order dated 23.02.2023. The impugned order preceeds notice issued in GST DRC 01 on 19.12.2022. The petitioner however failed to respond to the same and therefore on account of the mis-match between the GSTR1 and GSTR 3B and also difference in ITC between GSTR 3B and GSTR 2A, the impugned order has been passed.
3. Normally period of limitation for filing an Appeal would have expired on 22.05.2023. With a further grace period of 30 days, the last date for filing an appeal would have expired on 22.06.2023.
4. The petitioner has thus not filed a Statutory Appeal before the Appellate Commissioner under Section 107 of the GST Act and in view of the decision of the Hon’ble Supreme Court in Assistant Commissioner (CT) LTU, Kakinada and others Glaxo Smith Kline Consumer Health Care Limited, 2020 SCC Online SC 440. The petitioner has now filed this writ petition on 21.08.2023 with a delay of 58 days. Although the Hon’ble Supreme Court in Assistant Commissioner (CT) LTU, Kakinada and others Vs. Glaxo Smith Kline Consumer Health Care Limited, 2020 SCC Online SC 440. has declared that orders cannot be challenged under Article 226 of the Constitution of India beyond the statutory period of limitation for filing appeal, Court is inclined to dispose this writ petition.
5. The explanation given by the petitioner in the affidavit filed in support of the present writ petition in para 7 appears to be reasonable. It reads as under:
“7.It is submitted the business was on decline trend, and also the staffs who were active during the period of operation prior to 2020 also left the company. The company is in existence mostly to sell the completed works, land stock and to collect its overdues receivable and also the business which depends upon the group concerns activity. In that process, the company did not frequently logged in the GST portal by the new and few employees of the company to visit the “notices and orders” tab. In that process, the uploading of GST DRC – 01 dated 19.12.2022 and subsequently the impugned order dated 23.02.2023 was not noticed in the GST portal by the new staff of the company. The company came to know there was a demand against them only when they manually received the recovery notice dated 24.07.2023. Immediately, the petitioner company filed a representation dated 27.07.2023 and also acknowledged by the respondent. In the representation, the petitioner company elaborately explained that there is no difference in the turnovers between GSTR 1 and 3B and also difference in ITC between GSTR 3B and 2A and whatever differences were paid by the company. However, the respondent did not consider the representation and again issued a urgent notice dated 03.08.2023 received by the petitioner on 07.08.2023.”
6. Considering the above, the delay in filing the appeal is condoned. The petitioner is directed to file a Statutory Appeal within a period of 30 days from the date of receipt of a copy of this order. The Appellate Commissioner shall number the appeal and dispose the same on merits in its turn.
7. Needless to state, the petitioner shall pre-deposit the amount that is required to be pre-deposited in terms of Section 107 of the GST Act, 2017. Before passing such order, the petitioner shall also be heard.
8. This writ petition stands disposed of. No costs.
Consequently, connected writ miscellaneous petitions are closed.