IMS Ship Managements Pvt Ltd Vs State of Maharashtra

FULL TEXT OF THE JUDGMENT/ORDER OF BOMBAY HIGH COURT

1. By this Petition under Article 226 of the Constitution of India, the Petitioner has challenged an order dated 12^th December, 2022 passed by Respondent No.3 Appellate Authority whereby he has dismissed the Appeal filed by the Petitioner under Section 107 of the Central Goods and Services Tax Act, 2017 (for short “the CGST Act”) on the ground that the Appeal is delayed by 59 days and therefore, the same cannot be admitted.

2. BRIEF FACTS ARE AS UNDER :-

The Petitioner is engaged in the business of supplying of floating, submersible drilling and production platforms, dredgers and supply of crew-members. The Petitioner is registered under the CGST Act.

3. On 23^rd July, 2021, the Petitioner received a notice for the period July, 2017 to March, 2018 intimating discrepancies in the return. The said notice was replied on 23^rd July, 2021 itself by giving detailed reasons refuting the alleged discrepancy. On 31^st December, 2021, Respondent issued an intimation of tax ascertained as being payable under Section 73(5) of the CGST Act. The tax ascertained as per the said intimation was denied by the Petitioner which led to the issuance of show a cause notice under Section 73 on 25^th February, 2022. On 20^th August, 2022, an email was received by the Petitioner for recovery of demand and it is at this point of time that the Petitioner came to know that an Order In Original (O-I-O) dated 28^th April, 2022 has been passed.

4. On 14^th September, 2022, the Petitioner informed Respondent No.4–Deputy Commissioner that they have not received O-I-O and that they were under a bonafide belief that the order would be passed only after personal hearing and since there was no personal hearing granted in the matter, they did not expect the order to be passed. It is only on receipt of recovery notice that it came to the knowledge of the Petitioner that the O-I-O dated 20^th August, 2022 has been uploaded on the portal of the Respondents without any communication of the same to the Petitioner either by email or otherwise.

5. On 26^th September, 2022, the Petitioner filed an Appeal with Respondent No.3 challenging the aforesaid O-I-O dated 20^th August, 2022. In the Appeal to Respondent No.3, the Petitioner stated the date of communication of O-I-O as 20^th August, 2022 and therefore, there is no delay in filing the Appeal. By way of abundant caution, the Petitioner also filed an application for condonation of delay explaining the aforesaid facts leading to knowledge of the Petitioner of the O-I-O having been passed by taking the date of O-I-O for purpose of limitation.

5. Respondent No.3 issued a notice on 4^th November, 2022 seeking explanation on the delay of 59 days in filing the Appeal as per Section 107(1) read with Section 107(4) of the CGST Act. The said delay appears to have been calculated by taking the date of O-I-O 28^th April, 2022 as the starting point of limitation. The Petitioner filed detailed submissions vide letters dated 14^th November 2022 and 24^th November 2022 giving the detailed reasoning as to why there is no delay in filing the Appeal. The Petitioner also relied upon the decision of the Madras High Court in support of its contention to the case of Nirmala Menon vs. The Assistant Commissioner (ST) Writ Petition No.24634 of 2022.

6. On 12^th December 2022, Respondent No.3 passed the impugned order dismissing the Appeal as not maintainable, since same has been filed late by 59 days which is beyond the period specified in Section 107(4) of the CGST Act.

7. It is on this backdrop and coupled with the fact that the CGST Tribunal has not been setup, the present Petition is filed challenging the order dated 12^th December, 2022 passed by Respondent No.3-Appellate Authority.

8. Heard learned counsel for the Petitioner and learned counsel for the Respondent and with their assistance, have perused the documents annexed to the Petition.

9. The Petitioner submitted that the O-I-O dated 28^th April, 2022 was not communicated to them and they came to know about this order only on receipt of recovery notice dated 20^th August, 2022. Immediately, thereafter an Appeal was filed under Section 107 of the CGST Act on 26^th September, 2022 and therefore, the same was within the period of 3 months as per Section 107 of the CGST Act and therefore, there is no delay in filing the Appeal. The Petitioner also submitted that the O-I-O was not communicated to them nor served and merely posting on common portal would not amount to the Petitioner having knowledge of the said order for the purpose of calculating the limitation period for filing the Appeal. The Petitioner stated that they had filed detailed submissions dated 14^th November, 2022 and 24^th November, 2022 on the issue of there being no delay, which have not been considered in the impugned order passed by Respondent No.3 and therefore, the impugned order dated 12^th December, 2022 is required to be set aside.

10. Per contra, learned counsel for the the Respondent submitted that the O-I-O have been served and the limitation period would start from the date of uploading the said order and therefore, Respondent No.3 was justified in dismissing the Appeal as time barred.

11. Having heard the learned counsel for the Petitioner and the Respondent, we are of the view that the impugned order dated 12^th December, 2022 passed by Respondent No.3 is certainly bereft of any reasons. Respondent No.3 has not considered the written submissions filed by the Petitioner dated 14^th November, 2022 and 24^th November, 2022 and the form in which the Appeal is filed, wherein it was specifically pleaded that the limitation would start from 28^th August, 2022, that is the date of the petitioner receiving knowledge of the passing of O-I-O. In our view, Respondent No.3 Appellate Authority ought to have considered the submissions of the Petitioner on this issue and ought to have given his reasons in the impugned order while deciding the limitation issue. There is no consideration of these submissions by Respondent No.3 in the impugned order. Having not done so, the impugned order suffers from infirmity and therefore, requires to be quashed and set aside.

12. We therefore, pass following order:-

ORDER

(i) The impugned order dated 12^th December, 2022 passed by Respondent No.3 is quashed and set aside.

(ii) The Appeal filed on 26^th September, 2022 is restored to the file of Respondent No.3, with a direction that Respondent No.3 would give a personal hearing to the Petitioner and after considering all the submissions would pass a speaking order dealing with all the contentions of the Petitioner with respect to the issue relating to the limitation and thereafter passed a speaking order.

(iii) If Respondent No.3 comes to a conclusion that there is no delay in filing the Appeal, then Respondent No.3 would adjudicate on the merits of the case.

(iv) Writ Petition is disposed of in above terms. No order as to costs.