The petitioner has filed this petition impugning the best judgment order dated 10.05.2019 under Section 62[1] of the Central Goods and Services Tax Act, 2017 [for short ‘the Act’] in proceeding No.ACCT/LGSTO-051/ASMT/2019-20 and the later order dated 6.3.2020 passed by the Joint Commissioner of Commercial Taxes [Appeals] – 6, Bengaluru, [the first respondent – for short, ‘the Appellate Authority’] dismissing the petitioner’s appeal under Section 107 of the Act.

2. Sri. B.G. Chidananda Urs, learned Counsel for the petitioner submits that the petitioner’s appeal under Section 107 of the Act is rejected on the ground that the appeal is filed beyond even the condonable period holding that the copy of the best Judgment order dated 10.05.2019 is served on the petitioner’s registered e-mail on 10.05.2019 and in person on 14.05.2019. However, the petitioner has not received copy of the order dated 10.05.2019 on the registered e-mail, and in any event, the Appellate Authority could not have concluded that a copy of the order dated 10.05.2019 is served on the petitioner only because the first respondent asserts that a copy of the order dated 10.5.2019 is sent by e-mail.

3. The learned Counsel for the petitioner relying upon the provisions of Section 169 of the Act elaborates that the Department could rely upon the deeming provisions in Section 169[2] and [3] of the Act as regards the date of service only if the service is in any of the modes contemplated under Section 169[1][a], [b], [e] or [f]. But when the asserted mode of service is either under sub-clause [c] or [d] of Section 169[1] of the Act, which provide for service by registered e4 mail or by uploading on the web portal, there cannot be any deemed service. The Department must establish that notice is indeed sent to the registered e-mail and uploaded on the web portal. The appellate authority, in the present case where it is alleged that service of the order dated 10.05.2019 is by registered email, the first respondent has not furnished any details in this regard.

4. The learned counsel further contends that the Appellate Authority has concluded that a physical copy of the order dated 10.05.2019 is served on the petitioner on 14.05.2019 under an acknowledgement. But, a physical copy of the order has not been served either on the Directors of the Company or its authorized representative. The details of the service of physical copy of the order dated 10.05.2019, except for a reference in the acceptance column of Form GST APL – 02, are not forthcoming in the impugned order dated 6.3.2020.  

5. The learned Counsel furthermore justifies the petitioner’s bonafides in asserting the date of service of order dated 10.05.2019 on 7.11.2019 relying upon Annexures-B & C. The learned counsel urges that the Department cancelled the petitioner’s registration on 4.9.2019 (as per Annexure-B) for the reason that the prescribed returns are not filed for a continuous period of six months, and in this order of cancellation the tax dues are mentioned as ‘Nil’. Subsequently, vide Annexure-C dated 24.10.2019, the cancellation of registration is revoked. The learned Counsel submits that if there was outstanding dues because of the best judgement assessment, the details of such dues would be mentioned in this order dated 04.09.2020, and because the order dated 04.09.2020 does not mention tax arrears the petitioner did not have reason to believe that there could be best judgment reassessment order.

6. Sri. Hemakumar, learned Additional Government Advocate, on the other hand, submits that the authorities have ensured that a copy of the order dated 14.05.2019 is served physically under a written acknowledgement dated 14.05.2019 and therefore the time for filing the appeal as contemplated under Section 107 of the Act will have to be reckoned from 14.05.2019 and not from 7.11.2019 as asserted by the petitioner. In rejoinder, the learned Counsel for the petitioner, who has had the benefit of going through the acknowledgement dated 14.05.2019 relied upon by the learned Additional Government Advocate, submits that the petitioner is able to ascertain that the service of the order copy on 14.05.2019 is on a site supervisor by name Nagarjuna whose mobile number is mentioned therein. This service cannot be relied upon to impute knowledge for the purposes of reckoning the time of limitation.

7. The provisions of Section 107 of the Act is categorical that a person aggrieved by any decision or order under the Act may prefer an appeal to the prescribed authority within three months from the date on which the said decision or order is communicated to such person with a further condonable period of thirty days. It would therefore be necessary for the appellate authority, while dismissing an appeal on the ground that it is filed beyond the period of limitation prescribed and the further condonable period, to decide on the limitation considering the circumstances relied upon by the parties to assert a particular date as the date of communication.

8. In the present case, the Department asserts 10/14.05.2019 and the petitioner asserts 7.11.2019 as the date of communication. The impugned order does not indicate that the appellate authority has considered the controversy in this regard. The appellate Authority has also not considered the circumstances relied upon by the petitioner to justify that the date of communication of the order as 07.11.2019. The Appellate Authority, given the scheme of the Act prescribing definite timelines for preferring an appeal and the lapse of right of appeal thereafter, would have to consider the circumstances asserted. It would be needless to observe that the Appellate Authority while considering the questions of the date of communication as contemplated under Section 107 of the Act would also have to decide on the merits of the case. Therefore the following:

ORDER

[a] The writ petition is disposed of.

[b] The impugned order dated 6.3.2020 passed by the Joint Commissioner of Commercial Taxes [Appeals] – 6, Bengaluru, is set aside and the proceeding in No.ACCT/LGSTO-051/ASMT/2019- 20 is restored to the board of the Appellate Authority i.e., the Joint Commissioner of Commercial Taxes [Appeals] – 6, Bengaluru for reconsideration in the light of observations made herein.

[c] The petitioner shall appear before the Appellate Authority without any further notice on 14.12.2020.  

In view of disposal of the petition, all pending applications do not survive for consideration and are accordingly disposed of.