The petitioner has filed this petition impugning the order dated 10.12.2018 in No.ACCT/LGSTO-066/ASMT/ 2018-19 – an assessment order under Sections 62, 50 and 73[9] of the Central Goods and Services Tax Act, 2017 [for short ‘the Act’] – and the subsequent order dated 02.12.2019 in the petitioner’s appeal in No.GST.AP.24/19-20 under Section 107 of the Act calling in question the order dated 10.12.2018 in No.ACCT/LGSTO-066/ASMT/ 2018-19. The Joint Commissioner of Commercial Taxes [Appeals]-6, Bengaluru, [Appellate Authority – the third respondent] has rejected the petitioner’s appeal on the ground that it is belated by four months and therefore beyond the maximum time permitted under Section 107 of the Act.  

2. The learned Counsel for the petitioner submits that:  

(a) the third respondent has failed to notice that the petitioner is not served with physical copy of the order dated 10.12.2018 until 28.05.2019 and the appeal is filed immediately thereafter,

(b) The petitioner has come to know about the impugned order dated 10.12.2018 when its banker informed the petitioner that the garnishee notice dated 30.01.2019 is issued, and the petitioner has bonafide paid a part of the demand on 5.2.2019. The petitioner even as of 5.2.2019, was not aware of the details of the assessment order dated 10.12.2018,

(d) In the facts and circumstances of the case, the date of communication of the order could only be 28.05.2019 and if this date is taken for reckoning the limitation, the appeal before the third respondent would be in time: in any event, the date of communication of the order could only be 5.2.2019, in which case the appeal would definitely be in time.

3. The learned counsel concludes that these circumstances have not been considered by the Appellate Authority in dismissing the petitioner’s appeal, and the failure to consider these circumstances has resulted in miscarriage of justice. On the other hand, Sri. Hemakumar, learned Additional Government Advocate refers to the appeal memorandum filed by the petitioner to emphasize that the appellant therein has specifically admitting that the order dated 10.12.2018 is communicated to the petitioner on the same day, and with this assertion the Appellate Authority’s order dismissing the appeal on the ground of limitation cannot be found fault with.

4. However, on perusal of Annexure-E, it is seen that the Appellate Authority, the third respondent, has not considered the specific assertions of the petitioner that the petitioner was not aware of the order dated 10.12.2018 until his banker informed him and immediately thereafter i.e., on 5.2.2019 the petitioner has deposited a part of the demand. If 05.02.2019 could be considered the date of communication, the appeal would be in time. These circumstances in the considered opinion of this Court had to receive the third respondent’s attention, and even mentioning 10.12.2018 as the date of communication in the appeal format had to be considered in the facts and circumstances as mentioned above. Therefore, this Court is of the considered view that Annexure-E which is rendered without considering these circumstances cannot stand the scrutiny in law especially given the fact that the Appellate Authority’s order results in denial of the right of appeal under the Act. Therefore the following:  

ORDER

[a] The writ petition is allowed in part.  

[b] The impugned order dated 2.12.2019 in Appeal No.GST.AP.24/19-20 passed by the Joint Commissioner of Commercial Taxes [Appeals]-6, Bengaluru, the third respondent, is set aside and the appeal restored to the board of the third respondent for reconsideration in the light of the observations made hereinabove with liberty to the petitioner to urge all grounds as it deems fit.  

[c] The petitioner shall appear before the Joint Commissioner of Commercial Taxes [Appeals]-6, Bengaluru, the third respondent, without further notice on 4.1.2021.