The Orissa High Court in the case M/s Atlas PVC Pipes Limited Versus State of Orissa observed and held that the non-submission of a certified copy of the GST order appealed days is a mere technical defect, against within 7 days.
The Division bench comprising of Justice Krushna Ram Mohapatra and Justice Murahari Shri Raman observed that on the altar of default in compliance of a procedural requirement and the merit of the matter of the case on appeal cannot be sacrificed.
The court noted that 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 and 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.
In the present case, 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 and under Section 74 of the OGST Act, it claims to have participated in the proceeding. However, CT & GST Officer, the Respondent by order raised a demand to the tune of Rs. 8,20,042 pertaining to the tax periods from 01-04-2019 to 31-03-2020.
It was observed that the petitioner was aggrieved by the demand and filed an appeal under Section 107 of the OGST Act. It was also asserted that the petitioner, in order to comply with the condition for filing of the appeal and it deposited 10% of the tax in dispute in terms of sub-section (6) of Section 107. However, the certified copy of the order along with the appeal memo could not be submitted by the petitioner.
It was contended by the petitioner that in addition to the filing of the appeal by electronic mode and self-attested hardcopies of the documents, while including a copy of the order available on the GST web portal and were furnished to the Appellate Authority. A notice was received by the petitioner dated May 13, 2022; in the notice it was indicated that the taxpayer was required to submit the certified copies within seven days of the filing of the appeal. However, the appellate authority ordered the petitioner to submit a certified copy of the document by May 21, 2022.
It was submitted by the petitioner 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. Moreover, in order to comply with the directions contained in the notice, the petitioner applied for and obtained a certified copy of the required document. Since 22.05.2022, the office of respondent was closed, being a Sunday, steps could only be taken on 23.05.2022 to comply with the terms of the notice dated 13.05.2022. Further, the petitioner offered to submit the certified copy on 23.05.2022 but the respondent refused to accept it. It was refused by the respondent to accept the certified copy on the plea that he had already passed the order of rejection of appeal and on 23.05.2022, the same was uploaded.
It was submitted by the petitioner 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, it was noted that the Tribunal had not been constituted yet.
Within seven days of the filing of the appeal in terms of sub-rule (3) of Rule 108 of the OGST Rules, the petitioner was required to furnish the certified copy of the order the department contended that having filed the appeal.
the order contained in Form GST APL-02 issued by the Joint Commissioner of State Tax (Appeal) was set aside by the court. The court rejected the appeal in the ground of non-submission of a certified copy of the order.
The petitioner was directed by the court 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.
The court noted and 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, after the submission of a certified copy of the order.
