# VISIBLE ALPHA SOLUTIONS INDIA PVT. LTD v. Commissioner CGST NOIDA & Anr

- **Citation:** (2024) 3 ILRA 1777
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-12
- **Case number:** Writ Tax No. 83 of 2024
- **Bench:** Shekhar B. Saraf
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/visible-alpha-solutions-india-pvt-ltd-v-commissioner-cgst-noida-anr-51614
- **Pages:** 4

## Headnote

The Central Goods & Services Tax Act,
2017 -- Section 107 - The Central Goods
& Services Tax Rules, 2017 - Rule 108 -
Appeal filed electronically in FORM GST APL-01
within limitation - rejection of appeal as timebarred on ground of non-submission of selfcertified copy of order - applicability of provisos
to Rule 108 - requirement of submitting selfcertified copy arises only when order appealed
against is not uploaded on common portal -
where appeal is filed electronically and order is
available on portal, provisos to Rule 108 not
attracted
-
date
of
provisional
acknowledgement to be treated as date of filing
of appeal - appellate authority erred in
dismissing appeals on technical ground -
impugned order based on misinterpretation of
Rule
108
-
order
rejecting
appeals
unsustainable in law - matter remanded for de
novo consideration on merits - appellate
authority directed to decide appeals within
stipulated time.

Writ petition allowed. (E-9)

## Text

3 All. VISIBLE ALPHA SOLUTIONS INDIA PVT. LTD. Vs. Commissioner CGST
 NOIDA & Anr.
1777

Question of law
Decision
"(I) Whether the men-rea
on the part of the assessee
is an essential pre-requisite
condition for imposition of
penalty
under
Section
54(1)(2) of the U.P. VAT
Act, 2008?
Yes
(II) Whether penalty under
Section 54(1)(2) of the Act
can be imposed where the
assessment is made on the
basis of Best Judgement
Assessment?
No
(IV) Whether imposition of
penalty of 7 times the total
tax
imposed
towards
alleged concealed turnover
was justified when the
express
provision
of
Section 54(1)(2) of the Act
provides for imposition of
a maximum penalty of 3
times
of
concealed
turnover?
Left open to
be
decided
in
appropriate
proceedings

50. The revision is allowed. The
judgement and order dated 06.04.2021
passed
by
learned
Commercial
Tax
Tribunal, Lucknow in Second Appeal No.
50 of 2017 is set aside.

51. Consequences to follow.
----------
(2024) 3 ILRA 1777
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.02.2024 &
12.03.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
Writ Tax No. 83 of 2024

VISIBLE ALPHA SOLUTIONS INDIA PVT.
LTD. ...Petitioner
Versus
Commissioner CGST NOIDA & Anr.
 ...Respondents

Counsel for the Petitioner:
Sri Mohit Gupta, Sri Somnath Bhattacharya, Sri
Zafar Ahmad Khan

Counsel for the Respondent:
Sri Amit Mahajan

The Central Goods & Services Tax Act,
2017 -- Section 107 - The Central Goods
& Services Tax Rules, 2017 - Rule 108 -
Appeal filed electronically in FORM GST APL-01
within limitation - rejection of appeal as timebarred on ground of non-submission of selfcertified copy of order - applicability of provisos
to Rule 108 - requirement of submitting selfcertified copy arises only when order appealed
against is not uploaded on common portal -
where appeal is filed electronically and order is
available on portal, provisos to Rule 108 not
attracted
-
date
of
provisional
acknowledgement to be treated as date of filing
of appeal - appellate authority erred in
dismissing appeals on technical ground -
impugned order based on misinterpretation of
Rule
108
-
order
rejecting
appeals
unsustainable in law - matter remanded for de
novo consideration on merits - appellate
authority directed to decide appeals within
stipulated time.

Writ petition allowed. (E-9)

(Delivered by Hon'ble Shekhar B. Saraf, J.)

1. Heard Sri Mohit Gupta, learned
counsel appearing on behalf of the
petitioner and Sri Amit Mahajan, learned
counsel appearing on behalf of the
respondents.

2. This is a writ petition under Article
226 of the Constitution of India wherein the
1778 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner is aggrieved by the order dated
October 18, 2023 passed by the respondent
No.1/Commissioner,
CGST
(Appeals),
NOIDA rejecting the two appeals filed by
the petitioner on the ground that the same
were time barred, as the self-certified copy
of the decision or order was not made
available within time as per proviso to Rule
108 of the Central Goods and Services Tax
Rules, 2017 (hereinafter referred to as "the
Rules").

3. Learned counsel appearing on
behalf of the petitioner has referred to Rule
108 of the Rules to indicate that when the
appeal is filed electronically and uploaded
on the common portal in FORM GST APL01, there is no requirement to file selfcertified copy of the decision. Both the
proviso to Rule 108 of the Rules apply only
in the case when the appeal is not uploaded
on common portal. Rule 108 of the Rules is
delineated below for clarification:

"108. 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 Commissioner, and a
provisional acknowledgement 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) Where the decision or order
appealed against is uploaded on the
common portal, a final acknowledgement,
indicating appeal number shall be issued in
FORM GST APL-02 by the Appellate
Authority or an officer authorised by him in
this behalf and the date of issue of the
provisional acknowledgement shall be
considered as the date of filing of appeal:

Provided that where the
decision or order appealed against is not
uploaded on the common portal, the
appellant shall submit a self-certified copy
of the said decision or order within a
period of seven days from the date of filing
of FORM GST APL-01 and a final
acknowledgement,
indicating
appeal
number, shall be issued in FORM GST
APL-02 by the Appellate Authority or an
officer authorised by him in this behalf, and
the date of issue of the provisional
acknowledgement shall be considered as
the date of filing of appeal:

Provided further that where
the said self-certified copy of the decision
or order is not submitted within a period of
seven days from the date of filing of FORM
GST APL-01, the date of submission of
such copy shall be considered as the date of
filing of appeal."

4. Upon a perusal of the impugned
order, it clearly appears that the appeal was
electronically
filed
within
the
time
permitted, that is, three months as per
Section 107 of the Central Goods and
Services Tax Act, 2017. Furthermore, the
first and second proviso to Rule 108 of the
Rules would not apply, as is clear from the
literal interpretation of the first proviso
itself.

5. In light of the above, the impugned
order dated October 18, 2023 is quashed
and set aside with a direction upon the
appellate authority to de novo hear the
appeals filed by the petitioner and pass a
reasoned order on merits within a period of
three months from date.

6. With the aforesaid directions, the writ
petition is allowed.
3 All. VISIBLE ALPHA SOLUTIONS INDIA PVT. LTD. Vs. Commissioner CGST
 NOIDA & Anr.
1779
----------

1. By judgment and order dated
February 12, 2024, this Court had allowed
this writ petition setting aside the impugned
order dated October 18, 2023 and directed
the appellate authority to de novo hear the
appeal filed by the petitioner and pass a
reasoned order on merits within a period of
three months.

2. Upon reconsideration of the order
passed, this Court, suo motu, is of the view
that paragraph 4 of the judgment and order
dated February 12, 2024 is required to be
substituted with the following paragraphs:-

"4. Various High Courts have
held that when an assessee files a memo of
appeal in the GST Portal, non submission
of certified copy would be treated as mere
technical defect and the appeal should not
be dismissed on the sole ground of non
submission of certified copy within time.
The Orissa High Court in the case of Atlas
PVC Pipes Ltd. vs. State of Odisha
reported in 2022 (65) G.S.T.L. 45 (Ori.)
held as follows:-

"6.13 On the altar of default in
compliance
of
such
a
procedural
requirement, merit of the matter in appeal
should not have been sacrificed. Since the
petitioner has enclosed the copy of
impugned order as made available to it in
the GST portal while filing Memo of
Appeal, non-submission of certified copy,
as has rightly been conceded by the
Additional Standing Counsel appearing on
behalf of CT&GST Organisation, is to be
treated as mere technical defect."

4(i). Furthermore, the High Court
of Madras in the case of PKV Agencies vs.
Appellate
Dy.
Commissioner
(GST)
(Appeals), Vellore reported in 2023 (73)
G.S.T.L. 71 (Mad.) held as follows:-

"5. In the aforesaid decision of
the Orissa High Court also, the petitioner
assessee had filed an appal under Section
107 of the Odisha Goods and Services Tax
Act, 2017, electronically on time, but did
not furnish a certified copy of the impugned
order, within seven days of filing of the
appeal as prescribed under the proviso to
Rule 108(3) of the OGST Rules. After
giving due consideration to all the relevant
provisions of the OGST Act/Rules, the
Orissa High Court has held that since Rule
108(3) has not prescribed for condonation
of delay in the event where the petitioner
fails to submit the certified copy of the
order impugned in the appeal nor is there
any provision restricting application of
Section 5 of the Limitation Act, 1963, in the
context of supply of certified copy within
the period stipulated in sub-rule (3) of Rule
108, the requirement to furnish certified
copy of the impugned order within seven
days of filing of appeal is only a procedural
requirement, which can be condoned by
exercising powers under Article 226 of the
Constitution of India as it is only a
technical defect."

4(ii)
Keeping
in
mind
the
judgments passed by these High Courts and
upon examination of Section 107 of the
Central Goods and Services Tax Act, 2017
read with Rule 108 of the Central Goods
and Service Tax Rules, 2017, I am of the
view that mere non filing of the certified
copy of the decision within a period of
seven days, when the appeal has been filed
electronically
within
the
time
frame
prescribed, that is, three months, the
authority should not dismiss the appeal on
the ground that the certified copy of the
decision was not filed within time."

3. Accordingly, paragraphs 4, 4(i) and
4(ii) of this order be read in place of
paragraph 4 of the judgment and order
1780 INDIAN LAW REPORTS ALLAHABAD SERIES
dated February 12, 2024 and this order be
treated as part and partial of the said
judgment and order.

4. The Registrar Compliance of this
Court is directed to communicate this order
to the parties.
----------
(2024) 3 ILRA 1780
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.02.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Sale/Trade/ Tax Revision No. 110 of 2023

The Commissioner. Commercial Tax, U.P.
Lko. ...Petitioner
Versus
S/s Soma Entp. Ltd. ...Respondent

Counsel for the Petitioner:
Sri Bipin Kumar Pandey (Addl. C.S.C.)

Counsel for the Respondent:
Sri Ved Prakash Singh

Uttar Pradesh Value Added Tax Act, 2008
- Section 58 - Input Tax Credit (I.T.C.) -
burden of proof upon the assessee - Section 16
- mere production of invoices or payment made
by cheques/RTGS not enough - genuineness of
transactions - actual physical movement of
goods - Tribunal granted I.T.C. merely on the
basis of invoices and payment details - ratio
contrary to the judgment of the Apex Court -
nature of burden of proof pari materia - order
of Tribunal quashed and set-aside - matter
remanded - questions of law answered in
favour of the Department and against the
assessee .

Revision Petition allowed. (E-9)

Cases Cited:
1. State of Karnataka v. M/s Ecom Gill Coffee
Trading Private Limited, 2023 SCC Online SC
248.

(Delivered by Hon'ble Shekhar B. Saraf, J.)

1. This is a revision petition filed
under Section 58 of the Uttar Pradesh
Value Added Tax Act, 2008 (hereinafter
referred to as 'the Act') wherein the
following questions of law have been
admitted by this Court:-

"1. Whether on the facts and
circumstances of the case the Commercial
Tax Tribunal as well as the 1st Appellate
Authority was legally justified in dismissing
the appeal filed by the department only on
the basis of invoices and bank transactions
inasmuch as the transactions have not been
proved
as
a
bonafide
and
genuine
transactions otherwise establishing the
actual transportation of goods?"
2. Whether on the facts and
circumstances of the case the Commercial
Tax Tribunal was legally justified in
allowing the claim of I.T.C. especially
when the finding of fact has been recorded
against the dealer and the benefit has been
allowed only on the basis of tax invoices
and bank transactions?"

2. The primary issue in the present
writ petition is with regard to availmentof
Input Tax Credit (hereinafter referred to as
"the I.T.C.") by the respondent/assessee.

3. Mr. Bipin Kumar Pandey,
learned Additional Chief Standing Counsel
appearing on behalf of the revisionist, has
submitted that the burden of proof is upon
the assessee to show the correctness of the
claim of the I.T.C. He relies upon Section
16 of the Act to indicate that such burden is
upon the assessee specially with matters,