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01 July 2021

Hight Court condoned delay in submitting certified copy of order appealed.

In the case of Shree Udyog v. Commissioner of State Tax Odisha, Cuttack cited in [2021] 127 taxmann.com 786 (ORISSA), the Adjudicating Authority passed the impugned order on 14th August, 2020 and uploaded it on the same day. It is not also in dispute that the last date for the filing of the appeal against the said order was 17th November, 2020. It is further admitted that the Petitioner has filed the appeal well in time on 13th November, 2020 electronically, accompanied by a downloaded copy of the order appealed against.

In accordance with rule 108 (3) of the OGST Rules, 2017, the appeal had to be accompanied by a certified copy of the order appealed against, which is to be submitted within 7 days of the filing of the appeal. Under the proviso to Rule 108(3) if the certified copy is submitted within 7 days of the filing of the appeal, then the date of filing of the appeal would be the date of the issue of the provisional acknowledgment. If it is filed after 7 days, the date of filing of the appeal would be the date of submission of such certified copy.

In the instant case, the petitioner could furnish a certified copy of the order of appealed against only on 9th March, 2021, i.e., more than 3 months after the filing of the appeal. According to the Appellate Authority, this delay could not be condoned and, therefore, the appeal itself was dismissed as not having been preferred in time.

The learned counsel for the Petitioner, points out that while the appeal was accompanied by the downloaded printed copy of the order appealed against, it was not accompanied by the certified copy thereof at that stage since the Lawyer who had filed the appeal was in self quarantine.

Considering that the explanation offered by the petitioner is a plausible and not an unreasonable one, especially in these Covid times, and further considering that a downloaded copy thereof was in fact submitted along with the appeal which was otherwise filed within time, this Court is of the view that the mere delay in enclosing a certified copy of order appealed against along with the appeal should not come in the way of the Petitioner's appeal for being considered on merits by the Appellate Authority.

Accordingly, the impugned order dated 10th March, 2021 of the Appellate Authority rejecting the appeal on the ground of delay, is hereby set aside by the Hon’ble High Court of Orissa. The appeal is now restored to the file of the Additional Commissioner of State Tax (Appeal)