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2025 DIGILAW 140 (MP)

Laxman Das Jaisinghani v. Union Of India

2025-02-25

SANJEEV SACHDEVA, VINAY SARAF

body2025
ORDER : Vinay Saraf, J. 1. Being aggrieved by the Order in Appeal dated 23.03.2024 passed by Joint Commissioner (Appeals) Central G.S.T. & Central Excise Bhopal, the petitioner has preferred the present petition. 2. With the consent of the parties, matter is heard finally. 3. Heard Shri Himanshu Khemuka, Advocate appeared on behalf of the petitioner and Shri Abhijeet Shrivastava, Advocate appeared on behalf of the respondent - revenue. 4. Short facts of the case are that, petitioner is the proprietor of M/s Swastik Traders and engaged in the business of General Stores and registered with GST Department under the provisions of Central Goods and Services Tax Act, 2017 {hereinafter to be referred as ‘CGST Act, 2017'}. The petitioner filed statutory GSTR-1 and GSTR-3B for the period of April - 2018 to March - 2019. However, the respondent department conducted GST Audit of the records of the petitioner and a show cause notice dated 31.03.2021 was issued to the petitioner by the respondent and GST demand was proposed under Section 74 of the CGST Act, 2017 for the difference between the Input Tax Credit claimed by the petitioner in GSTR-3B return and assessed by department. As per the department, petitioner did not appear and submit any reply or documents in response to show cause notice. After consideration, the Assessment Officer Superintendent CGST, Jabalpur passed the Order in Original on 22.09.2022 and held that the petitioner had availed Input Tax Credit of Rs.8,02,813/- wrongly for the period 2018-2019 and consequently confirmed tax demand of Rs.8,02,813/- and imposed penalty of Rs.8,02,813/- upon the petitioner. 5. Order dated 22.09.2022 was served upon the petitioner on 30.09.2022. The petitioner deposited Rs.82,000/- in his GST Electronic Cash Ledger on 22.12.2022 and thereafter submitted offline appeal under Section 107 of CGST Act, 2017 through Speed Post which was delivered on 20.01.2023. According to Section 107 (1), the limitation prescribed for filing the appeal is three months from the date on which the said decision or order is communicated to such person. Sub Section 6(b) provides that, appeal shall not lie unless the appellant has paid a sum equivalent to 10% of the remaining amount of tax in dispute arising from the said order. Thereafter, on 13.04.2024, petitioner filed online appeal along with the copy of challan of pre-deposit amount of Rs.82,000/- on 22.12.2022. Sub Section 6(b) provides that, appeal shall not lie unless the appellant has paid a sum equivalent to 10% of the remaining amount of tax in dispute arising from the said order. Thereafter, on 13.04.2024, petitioner filed online appeal along with the copy of challan of pre-deposit amount of Rs.82,000/- on 22.12.2022. Thereafter, the petitioner transferred Rs.80,283/- through GST APL - 01 on 13.04.2023 towards pre-deposit of 10% of the disputed tax amount. 6. The appellate authority by order dated 23.04.2024 dismissed the appeal filed under Section 107 by offline mode as well as online by the petitioner on the ground that petitioner has not made the mandatory pre-deposit along with the offline appeal dated 20.01.2023 and online appeal filed by the petitioner on 13.04.2023 was beyond the time limit prescribed by law. The appellate authority further held that appeal ought to have been filed within a period of three months from the date of communication of order in original on 30.02.2022 and the delay up to the period of one month can be condoned by the appellate authority upon being satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the prescribed period of three months as per Section 107 (4) of CGST Act, 2017. It is further held that as the online appeal filed on 13.04.2023 was filed beyond the period of one month, after expiry of limitation, therefore, the same could not be considered and the mandatory pre-deposit was not made by the appellant with the appeal filed offline, the same is also not considerable. 7. Being aggrieved by the Order in Appeal passed by the appellate authority i.e. Joint Commissioner (Appeals) Central G.S.T. & Central Excise Bhopal, the petitioner has preferred the present petition assailing the Order in Original as well as Order in Appeal. 8. Shri Himanshu Khemuka, learned counsel appearing for the petitioner submits that the petitioner duly transferred Rs.82,000/- in the GST Tax Account maintained with Revenue on 22.12.2022 and there was sufficient credit balance in his Tax Ledger for deducting 10% of the Tax demand in dispute and in this way, he has complied with the provisions of Section 107 (6b) of the CGST Act, 2017. He further submits that before 18.04.2023, it was not essential to pay the pre- deposit amount through form GST DRC-03 and pre-deposit amount could be paid by transferring the amount in GST Electronic Cash Ledger. Rather by instructions dated 28.10.2022 issued by MoF indicates that GST DRC-03 was not a prescribed mode for payment of pre-deposit. He further submits that as the adjudicating authority did not upload the impugned order dated 22.09.2022 on GST Portal till 17.01.2023, the petitioner could not have deposited the amount through GST DRC - 03 and pre-depositing amount could be paid by transferring the amount in the GST Electronic Cash Ledger only. He further submits that before 18.4.2023, the pre-deposit amount could be deposit through GST Electronic Cash Ledger. He submits that the appellate authority has failed to appreciate the fact that pre-deposit had already been made and therefore, the appeal ought to have been decided on merit. 9. Shri Abhijeet Shrivastava, learned counsel appearing on behalf of respondent -revenue opposed the petition on the ground that appeal was not submitted within prescribed period. However, fairly accepted that before 18.04.2023, the pre-deposit could be made through GST Electronic Cash Ledger. 10. Considering the arguments advanced by the parties and after perusal of record, it appears that Order in Original was passed by adjudicating authority on 22.12.2022, which was served upon the petitioner on 30.9.2022. The petitioner had three months time to prefer the appeal. During this period, on 22.12.2022 the petitioner deposited Rs.82,000/- in his GST Electronic Cash Ledger through cash challan. It is not in dispute that the order in original was upload on 17.01.2023 and therefore, before that day, no payment could be made either through GST APL 0- 1. As the order was not uploaded, petitioner submitted the appeal through speed post, which was received by the office of appellate authority on 20.01.2023. After uploading the order in original, the petitioner filed the online appeal on 13.04.2023 and also paid the pre-deposit amount through GST APL - 01. It appears that the pre-deposit amount was already deposited by the petitioner before formal dismissal of the appeal. It is informed to the Court that in the month of December 2022, filing of appeal through electronic mode was not mandatory and the appeal could be filed manually also. It appears that the pre-deposit amount was already deposited by the petitioner before formal dismissal of the appeal. It is informed to the Court that in the month of December 2022, filing of appeal through electronic mode was not mandatory and the appeal could be filed manually also. There is nothing on record to show that any notification has been issued by which the manual filing of appeal was prohibited in the month of December, 2022. An appeal through electronic mode could not be filed until and unless the impugned order is uploaded on the GST portal. In the present matter, the impugned order was uploaded on 17.01.2023 and therefore, the petitioner could not file the appeal through electronic mode earlier, therefore, petitioner has not committed any error in depositing Rs.82,000/- in his GST Electronic Cash Ledger and submitting the appeal through speed post. 11. In such circumstances, there was no failure on the part of petitioner in filing the appeal, within the prescribed period of limitation as well as depositing the mandatory amount in accordance with Section 107 (6b) of CGST Act, 2017. Merely, because the petitioner could not pay the mandatory amount through GST APL - 01 in the absence of uploading the Order in Original, petitioner cannot be held liable for transferring the amount in his GST Electronic Cash Ledger as no other option was available with the petitioner. In the facts and circumstances of the present case, we are of the view that the petitioner has sufficiently complied with the provisions of Section 107 and filed the appeal within condonable period and pre-deposited the amount through challan on 22.12.2022. 12. For the forgoing reasons, the petition succeeds and is accordingly allowed. Impugned Order in Appeal dated 22.03.2024 passed by respondent No.2 - Joint Commissioner (Appeals) Central G.S.T. & Central Excise Bhopal, is hereby quashed and set aside. This Court is of the view that the appeal should not be dismissed merely due to a procedural delay, especially when the petitioner has made an effort to comply with the statutory requirements, including the pre- deposit of 10% of the tax liability and additional payments towards the disputed tax amount. The delay in preferring the appeal is hereby condoned. This Court is of the view that the appeal should not be dismissed merely due to a procedural delay, especially when the petitioner has made an effort to comply with the statutory requirements, including the pre- deposit of 10% of the tax liability and additional payments towards the disputed tax amount. The delay in preferring the appeal is hereby condoned. The petition is disposed of by holding that the petitioner has already deposited amount equivalent to the 10% of the tax demand and the matter is remitted to respondent No.2 to decide the same afresh on merits, after giving adequate opportunity to the petitioner. 13. With the aforesaid, petition is allowed.