Non-Submission Of Certified Copy of GST Order Appealed Against Within 7 Days Is A Mere Technical Defect: Orissa High Court

The division bench of Justice Krushna Ram Mohapatra and Justice Murahari Shri Raman has observed that on the altar of default in compliance of a procedural requirement, the merit of the matter on appeal cannot be sacrificed.

"Since the petitioner has enclosed the copy of the impugned order as made available to it in the GST portal while filing the Memo of Appeal, the non-submission of the certified copy, as has rightly been conceded by the Additional Standing Counsel appearing on behalf of CT and GST Organisation, is to be treated as a mere technical defect," the court noted.

The petitioner, M/s Atlas PVC Pipes Limited, a company incorporated under the provisions of the Companies Act, 1956, deals in the supply of pipes. It claims to have participated in the proceeding under Section 74 of the OGST Act. Ultimately, the respondents/CT & GST Officer by order raised a demand to the tune of Rs. 8,20,042 pertaining to the tax periods from 1st April, 2019 to 31st March, 2020.

The petitioner was aggrieved by the demand and filed an appeal under Section 107 of the OGST Act. It was asserted by the petitioner that in order to comply with the condition for filing of the appeal, it deposited 10% of the tax in dispute in terms of sub-section (6) of Section 107. However, the petitioner could not submit the certified copy of the order along with the appeal memo.

The petitioner contended that in addition to the filing of the appeal by electronic mode, self-attested hardcopies of the documents, including a copy of the order available on the GST web portal, were furnished to the Appellate Authority. The petitioner received notice dated May 13, 2022, in which it was indicated that the taxpayer was required to submit the certified copies within seven days of the filing of the appeal. The Appellate Authority, however, ordered the petitioner to submit a certified copy of the document by May 21, 2022.

The petitioner submitted that the Appellate Authority by issue of notice dated 13.05.2022 impliedly extended the period for submission of a certified copy of the order appealed against. In order to comply with the direction contained in the notice, the petitioner applied for and obtained a certified copy of the required document. Since the office of the respondent was closed on 22.05.2022, being a Sunday, steps could only be taken on 23.05.2022 to comply with the terms of the notice dated 13.05.2022. Although the petitioner offered to submit the certified copy on 23.05.2022, the respondent refused to receive it. The respondent refused to accept the certified copy on the plea that he had already passed the order of rejection of appeal and uploaded the same on 23.05.2022.

The petitioner submitted that the hyper-technical approach of the Appellate Authority rendered the petitioner remediless as there was no scope for approaching the Appellate Tribunal under Section 112 as the Tribunal had not been constituted yet.

The department contended that having filed the appeal, the petitioner was required to furnish the certified copy of the order within seven days of the filing of the appeal in terms of sub-rule (3) of Rule 108 of the OGST Rules.

The court set aside the order contained in Form GST APL-02 issued by the Joint Commissioner of State Tax (Appeal), rejecting the appeal on the ground of non-submission of a certified copy of the order.

The court directed the petitioner to appear before the Joint Commissioner of State Tax (Appeal), CT & GST Territorial Range, Cuttack-I, Cuttack on or before 11.07.2022 with a certified copy of the order.

After the submission of a certified copy of the order, the court directed the Appellate Authority to decide the appeal on the merits and make every effort to dispose of the case by a reasoned order in accordance with the law.

Case Title: M/s Atlas PVC Pipes Limited Versus State of Orissa

Case No: W.P.(C) No. 14163 of 2022

Citation: 2022 LiveLaw (Ori) 108

Dated: 29.06.2022

Counsel For Petitioner: Advocate Sudeepta Kumar Singh

Counsel For Respondent: Additional Standing Counsel Sunil Mishra

Click Here To Read/Download Order