Allahabad High Court
M/S Nitish International vs Assistant Commissioner, Sector 10 ... on 22 July, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:116046 Court No. - 36 Case :- WRIT TAX No. - 986 of 2024 Petitioner :- M/S Nitish International Respondent :- Assistant Commissioner, Sector 10 (Mobile Squad) And Another Counsel for Petitioner :- Pooja Talwar Counsel for Respondent :- C.S.C. Hon'ble Kshitij Shailendra,J.
1. Heard Mr. Arjit Gupta, Advocate holding brief of Ms. Pooja Talwar, learned counsel for the petitioner and Mr. Arvind Mishra, learned Standing Counsel for the respondents.
2. This writ petition has been filed challenging the orders dated 29.05.2023 and 07.12.2023. By the first order penalty has been imposed under Section 129(3) of the UPGST/CGST Act, 2017 read with Section 20 of IGST Act, 2017 whereas by the second order, the petitioner's statutory appeal has been dismissed by mentioning remark "delay in submission of appeal" as the reason for rejection contained in column No.8 of the order. Admittedly, GST Tribunal is not functional and, therefore, the alternative remedy against the impugned orders is not available to the petitioner.
3. Learned counsel for the petitioner submits that completely non-speaking show cause notice was issued rendering initial order as illegal hence the appeal should be heard on merits. As regards the appellate order, reliance has been placed upon an order dated 24.04.2024 in Writ Tax No. 446 of 2024 (M/S Aatma Ram Mishra Contractor Vs. Commissioner Of Commercial Tax and 3 others) passed by coordinate bench of this Court and it is contended that even if the appellate authority proceeds to dismiss the appeal as barred by time, opportunity of hearing should be given to the appellant concerned which, in the present case, has not been provided to the petitioner.
4. Learned Standing Counsel vehemently opposes the submission and submits that the statutory period of limitation having been fixed in the provision itself, providing or non-providing of opportunity would make no difference and, therefore, the petition has no force.
5. Having heard learned counsel for the parties and having perused the order dated 24.04.2024 passed by coordinate Bench of this Court where under identical facts arising out of identical statutory proceedings, the appellate order dismissing the appeal as barred by limitation was set aside on the ground that no opportunity of hearing was provided to the petitioner before dismissing the appeal as barred by time, this Court proceeds to dispose of the writ petition on the same lines to sub-serve the ends of justice.
6. The writ petition is partly allowed in the following terms:
I. The impugned order dated 07.12.2023 passed by the appellate authority, i.e., respondent No.2 is set aside.
II. The petitioner is directed to appear before respondent No.2 along with true attested copy of this order on 12.08.2024.
III. Respondent No.2 shall revive the proceedings of appeal and after providing opportunity of hearing to the petitioner on the point of delay, it shall pass an order by the end of September, 2024.
Order Date :- 22.7.2024 K.K.Tiwari