Andhra Pradesh High Court - Amravati

M/S. Sri Lakshmi Venkateswara ... vs The State Of Andhra Pradesh on 15 March, 2021

Bench: U.Durga Prasad Rao, B Krishna Mohan

      HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

               WRIT PETITION No. 24150 of 2020

Between:

M/s Sri Lakshmi Venkateswara
General Merchants and Commission
Agents, represented by its partner,
Kalyandurg, Ananthapur District

                                                  .. Petitioner
and

The State of Andhra Pradesh,
represented by its Principal Secretary,
Revenue Department (CT),
Velagapudi, Amaravati, Guntur District,
and others

                                                .. Respondents

DATE OF JUDGMENT PRONOUNCED: 15.03.2021

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN

1. Whether Reporters of Local newspapers Yes/No may be allowed to see the Judgments?

2. Whether the copies of judgment may be Yes/No marked to Law Reporters/Journals?

3. Whether Their Ladyship/Lordship wish to Yes/No see the fair copy of the Judgment?

U. DURGA PRASAD RAO, J UDPR,J&BKM,J

*THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO AND *THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN +Writ Petition No.24150 of 2020

% 15-03-2021

# M/s Sri Lakshmi Venkateswara General Merchants and Commission Agents, represented by its partner, Kalyandurg, Ananthapur District ..Petitioner

Vs.

$ The State of Andhra Pradesh, represented by its Principal Secretary, Revenue Department (CT), Velagapudi, Amaravati, Guntur District, and others ..Respondents

<GIST:

>HEAD NOTE:

! Counsel for petitioner : Sri B. Srinivasa Rao

^ Counsel for respondents : The Government Pleader representing the Additional Advocate General-II

? CASES REFERRED : --

UDPR,J&BKM,J

HON'BLE SRI JUSTICE U.DURGA PRASAD RAO AND HON'BLE SRI JUSTICE B. KRISHNA MOHAN

Writ Petition No.24150 of 2020

ORDER: (Per UDPR,J)

In the instant writ petition, the petitioner challenges the AJC

order No.4959/29.1.2020 dated 11.12.2019 served on 22.02.2020

passed by the 3rd respondent rejecting the appeal filed by the petitioner

against the assessment order dated 30.05.2018 passed by the 4th

respondent.

2. The petitioner deals in edible and non-edible oils and it is a

registered dealer under the APGST Act, 2017.

a) The 4th respondent consequent to the inspection of petitioner's

business premises on 03.02.2018, issued a show cause notice in Form

GST DRC-02 (APGST) on 22.03.2018 in respect of a differential

turnover involving a tax liability of Rs.1,72,920/-. The petitioner

submitted its explanation. However, the 4th respondent passed

assessment order dated 30.05.2018 fixing tax liability of Rs.1,72,920/-

on the differential turnover of Rs.69,16,797/- for the tax period July

2017 to February 2018. The 4th respondent passed a separate

assessment order for equal sum of tax under the provisions of the

CGST Act, 2017.

b) Aggrieved by the two assessment orders under CGST Act, 2017

and APGST Act, 2017, the petitioner filed appeals in the office of the

3rd respondent on 28.06.2018 along with proof of payment of pre-

UDPR,J&BKM,J

deposit @ 10% of the disputed tax which was received by the office

of the 3rd respondent on 28.06.2018.

c) As per Section 107 of the CGST Act, appeal has to be preferred

within three months from the date on which the assessment order is

communicated. In the instant case, the assessment order was passed

by the 4th respondent on 30.05.2018 which was received by the

petitioner on 05.06.2018 and the appeals were filed on 28.06.2018

within time.

d) The orders dated 30.05.2018 under the provisions of the

APGST Act, 2017 and the CGST Act, 2017 were not uploaded by the

4th respondent on GST common portal. Since there is no stipulation in

the appeal provision that the appeal has to be invariably filed online

on GST portal, the petitioner filed appeal papers in the office of the 3rd

respondent in person and obtained acknowledgment from the office of

the 2nd respondent.

e) Later, in response to the check memo, issued on 04.09.2019, the

petitioner gave reply on 17.09.2019. The substance of the check

memo was that the appeal was not filed on GST portal and in reply,

the petitioner submitted that the proceedings of assessment under both

the Acts were served on the petitioner manually on 05.06.2018 but not

by uploading through online and as the efforts made by the petitioner

to file appeal before the appellate Authority through online were not

successful as the GST common portal failed to open, the petitioner

had to file the appeal manually. However, the appeal was rejected on UDPR,J&BKM,J

the sole ground that the same was not filed electronically vide

impugned order dated 11.12.2019.

f) The 3rd respondent has no authority to reject the appeal. The

petitioner complied with the statutory condition of pre-deposit @ 10%

of the disputed tax. The impugned order was served on the petitioner

on 22.02.2020. As against the impugned appeal rejection order, an

appeal ought to have been presented on or before 21.05.2020 before

the Appellate Tribunal. Since there is no appellate tribunal

constituted, the question of applicability of any limitation period does

not arise. Further, the wife of the petitioner succumbed to corona and

therefore, the petitioner filed the writ petition.

3. Learned Government Pleader filed counter on behalf of the 3rd

respondent and opposed the writ petition.

4. Heard learned counsel for the petitioner, Sri B. Srinivasa Rao,

and learned Government Pleader representing learned Additional

Advocate General-II appearing for the respondents.

5. The Counsel for the petitioner submits that since the

Assessment Order copies were received manually, there was no

occasion for the petitioner to submit grounds of appeal electronically

as he has to file the order copies and other relevant documents along

with the grounds of appeal. Further, Rule 108 of APGST Rules, 2017

gives liberty to an appellant to file an appeal with required forms and

relevant documents "either electronically or otherwise as notified by

the Chief Commissioner". Since the Chief Commissioner has, as of

now, not notified any particular form for filing appeal, the appellant is UDPR,J&BKM,J

at liberty to file the appeal by choosing either mode. He further

argued that in fact the petitioner tried to upload the appeal

electronically through the GST portal, but as the portal did not open,

he had resorted to manual mode and the same was accepted by the

office of the 3rd respondent vide acknowledgment dated 28.06.2018.

In spite of the same, he lamented, the appeal was rejected on the sole

ground that it was not filed electronically. He relied upon the

judgment in W.P.No.3308 of 2021 dated 11.02.2021 of a Division

Bench of this Court to contend that in similar circumstances, this

Court directed the respondent Department to receive the appeal

manually and pass appropriate orders.

6. Per contra, learned Government Pleader contended that as per

Rule 108 of the GST Rules, an appeal should invariably be filed

electronically but not by other mode. On two propositions, he sought

to buttress his argument.

7. Firstly, referring to Rule 108(1), he argued that the phraseology

"either electronically or otherwise as may be notified by the Chief

Commissioner" should be comprehended in such a manner that

electronic mode of filing is mandatory, since the word "shall" is

employed some words prior to the word "electronically". Then, the

remaining part i.e., "otherwise as may be notified by the Chief

Commissioner" should be understood that the other mode of filing

including manual filing is permissible, if it is so notified by the Chief

Commissioner. Since such notification is not given, it should be

understood that appeal should be filed only electronically.

UDPR,J&BKM,J

8. To appreciate the above argument it is apposite to reproduce

Rule 108 which reads thus:

Appeal to the Appellate Authority (1) An appeal to the Appellate Authority under sub-section (1) of section 107 shall be filed in FORM GST APL-01, along with the relevant documents, either electronically or otherwise as may be notified by the Chief Commissioner, and a provisional acknowledgment shall be issued to the appellant immediately.

(2) The grounds of appeal and the form of verification as contained in FORM GST APL-01 shall be signed in the manner specified in rule 26.

(3) A certified copy of the decision or order appealed against shall be submitted within seven days of filing the appeal under sub-rule (1) and a final acknowledgment, indicating appeal number shall be issued thereafter in FORM GST APL- 02 by the Appellate Authority or an officer authroised by him in this behalf:

Provided that where the certified copy of the decision or order is submitted within seven days from the date of filing the FORM GSTAPL-01, the date of filing of the appeal shall be the date of the issue of the provisional acknowledgment and where the said copy is submitted after seven days, the date of filing of the appeal shall be the date of the submission of such copy.

9. The words "electronically" and "otherwise" are co-related with

the two conjunctions i.e., "either" and "or". Grammatically, these two

conjunctions are used in co-relation with some words to indicate the

alternativity or choice between the two persons, things, or events. In

the instant case, the word "electronically" is prefixed with the

conjunction "either" and the word "otherwise" is prefixed with the

conjunction "or". From this usage, what can be deduced is that the

mode of filing is a choice between electronic and other form (usually,

manual form), as may be notified by the Chief Commissioner. Since

admittedly notification is yet to be given by the Chief Commissioner,

appeal can be filed in either manner. The mandate of the word "shall"

UDPR,J&BKM,J

in Rule 108(1) applies to Form GST APL-01 but not to the word

"electronically". In my view, if the word "shall" was intended to

govern the word "electronically" also, the word "either" would not

have been posited immediately before the word "electronically"

because the phrases "shall electronically" and "either electronically"

are oxymorons. In W.P.No.3308 of 2021, a Division Bench of this

Court expressed similar view as follows:

"10. As can be seen from Rule 108(1) of APGST Rules, 2017, the language employed therein is as clear as crystal to the effect that an appeal to the appellate authority under Section 107(1) of the APGST Act shall be filed along with form GST APL-01 and the relevant documents 'either electronically or otherwise as may be notified by the Chief Commissioner'. So, till the Chief Commissioner specified one particular mode of filing, the concerned appellant can choose to file the appeal either electronically or otherwise i.e., manually. In that view, the interpretation of the 1st respondent that since the Chief Commissioner has not given notification that the manual filing of the appeal can be accepted by the appellate authority, the appellant cannot file the appeal in manual form is contrary to the purport of Rule 108(1) of APGST Rules, 2017."

So, the first argument of learned Government Pleader cannot be

countenanced.

10. Secondly, referring to Rule 108(2) and Rule 26 of the APGST

Rules, learned Government Pleader argued that the grounds of appeal

and the form of verification as contained in FORM GST APL-01 shall

be signed as specified in Rule 26. Whereas Rule 26 specifies the

method of authentication of applications and other documents

including "appeals" saying that the documents including appeals shall

be submitted electronically with a digital signature certificate or

through e-signature as specified under the provisions of Information UDPR,J&BKM,J

and Technology Act, 2000 or verified by any other mode of signature

or verification as notified by the Chief Commissioner in that behalf.

Learned Government Pleader thus argued that since Rule 26 specifies

that appeals and other documents shall be submitted electronically

with a digital signature certificate or e-signature, it should be

understood that appeal under Rule 108 shall be filed only

electronically.

11. Rule 26(1) reads thus:

Method of authentication

(1) All applications, including reply, if any, to the notices, returns including the details of outward and inward supplies, appeals or any other document required to be submitted under the provisions of these rules shall be so submitted electronically with digital signature certificate or through e- signature as specified under the provisions of the Information Technology Act, 2000 (Act No.21 of 2000) or verified by any other mode of signature or verification as notified by the Chief Commissioner in this behalf:

Provided that a registered person registered under the provisions of the Companies Act, 2013 (Act No.18 of 2013) shall furnish the documents or application verified through digital signature certificate."

It is true that Rule 26(1) specifies that all applications including the

appeals which are required to be submitted under the provisions of

these Rules shall be so submitted electronically with a digital

signature certificate or through e-signature or verified by any other

mode of signature or verification as notified by the Chief

Commissioner. So far as verification is concerned, Notification

No.6/2017-Central Tax dated 19.06.2017 was issued by the

G.O.I.Ministry of Finance, Department of Revenue, Central Board of

Excise and Customs, stating that the mode of verification for the UDPR,J&BKM,J

purpose of Rule 26(1) is (i) Aadhar based electronic verification code

(EVC) and (ii) Bank account based one time password (OTP). Thus

apparently there is a discrepancy between Rule 108(1) and (2) with