22.12.2022: Rejecting Appeal For Delay Of One Day By Taking Such A Hyper Technical And Academic View Not Sustainable – Himachal Pradesh High Court

The Hon’ble High Court of Himachal Pradesh vide its order dated 13.12.2022 in the matter of Sunil Kumar Vij Vs. Union of India and Others in CWP No. 8478 of 2022, set aside the order rejecting the appeal of the assessee for delay of one day, finding that the view taken by the appellate authority is quite hyper technical and academic.  Further the cancellation of registration by the said order would prevent the assessee to continue with his business.

The petitioner filed the writ petition before the Hon’ble High Court praying for quashing the order dated 29.08.2022, passed by Respondent No. 2, whereby the appeal filed by the petitioner was rejected for delay of one day in filing, and the same was passed in gross violation of principle of natural justice without the deciding the appeal on merit.  It was also prayed to direct the respondents to stay the operation of order dated 28.07.2020 passed by Respondent No. 4 and also to direct the Respondent No. 3&4 to revoke the cancellation of CGST Registration in interest of law and justice.

Facts of the Case: –

  • The petitioner is a dealer registered under the GST and was served with a show cause notice dated 14.07.2020 for cancellation of the registration. Thereafter, the Respondent No. 4 suo moto cancelled the GST registration of the petitioner vide its order dated 28.07.2020, on the ground that the petitioner had not filled up-to-date returns along with payment of tax.
  • That the revocation application filed against the said order of cancellation was also rejected by Respondent No. 3 vide its order 25.10.2021.
  • Being aggrieved, the petitioner filed an appeal against the order dated 25.10.2021 rejecting the revocation application, however, the appeal was dismissed by Respondent No. 2 as time-barred for delay of one day in filing.

Held: –

  • The Hon’ble Court after considering the submissions made and facts of the case, observed that ‘how respondent No.2 could have taken such a hyper technical and pedantic view of the matter to hold that even the delay of one day would be fatal to the maintainability of the appeal.’
  • It was found that it is not in dispute that the Respondent No. 2(Appellate Authority) is vested with the power to condone the delay and there are various precedents on the issue such as: – M/s G.G. Agencies Girijeshwar Rice Mill vs. The State of Karnataka & Ors. (Writ Petition No. 15344 of 2022, decided on 18.08.2022; Vinod Kumar Vs. Commissioner Uttarakhand State GST & Ors. -Uttarakhand High Court (Special Appeal No. 123 of 2022); TVL. Suguna Cutpiece Centre vs. The Appellate Deputy Commissioner (ST) (GST), The Assistant Commissioner (Circle), Salem Bazaar – Madras High Court; M/s Trans India Carco Carriers Vs. The Assistant Commissioner (Circle) W.P. Nos. 18537 of 2022 and etc.- Madras High Court; Poonamchand Saran vs. Union of India – Civil Writ Petition No. 14521/2022 along with other connected matters decided on 29.09.2022.
  • Further it was found by the Hon’ble Court that there is also no dispute to the fact that the petitioner would not be able to continue with his business in absence of GST registration and thus would be deprived of his livelihood which amounts to violation of his right to life and liberty as enshrined under Article 21 of the Constitution of India.

The Hon’ble Court with the above findings, set aside the impugned order dated 29.08.2022, and condoned the delay in filing of appeal before the Respondent No. 2 with the directions to decide the appeal on merits.

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