HON'BLE SRI JUSTICE U.

DURGA PRASAD RAO

AND
HON’BLE MS. JUSTICE J. UMA DEVI

WRIT PETITION No.3308 of 2021

ORDER: (per UDPR,J)

The petitioner seeks writ of mandamus declaring the impugned

appeal rejection order No.ZH370720OD36161, dated 28.07.2020,

passed by the 1st respondent rejecting the appeal S.18/2019-20 filed by

the petitioner after nearly one year on the ground that it was filed

manually instead of electronically as contrary to Rule 108(1) of

APGST Rules, 2017 and consequently, direct the 1st respondent to

decide the appeal on merits.

2. The petitioner’s case succinctly is thus:

The 2nd respondent passed assessment orders dated 06.05.2019

for the tax periods 09/17 to 04/18 under the IGST, CGST and APGST

Acts by imposing tax on un-fructified sales. Aggrieved, the petitioner

preferred statutory appeal before the 1st respondent on 28.08.2019. As

the Rule 108 of APGST Rules, 2017 permits filing of appeal

electronically, the petitioner had, first attempted to file the appeal

electronically but the same was not received by the Department

Website due to some glitches and therefore, the petitioner filed the

same manually before the 1st respondent and obtained the

acknowledgement dated 28.08.2019. However, the 1st respondent

passed the impugned appeal rejection order dated 28.07.2020 on the

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sole ground that the appeal was not filed by the petitioner

electronically.

Hence, the instant writ petition.

3. Heard learned counsel for petitioner, Sri G.Narendra Chetty and

learned Government Pleader representing the office of the Advocate

General – II.

4. Learned counsel for petitioner would strenuously argue that the

order of rejection is quiet contrary to Rule 108 of A.P.GST Rules,

2017 inasmuch as the said Rule gives liberty to an appellant to file an

appeal with required forms and relevant documents ‘either

electronically or otherwise as may be notified by the Chief

Commissioner’. Since, as of now, the Chief Commissioner has not

notified any particular form for filing appeal, the concerned appellant

is at liberty to file the appeal by choosing either mode. Learned

counsel would further submit that in fact the petitioner tried to upload

the appeal electronically through the website of the 1st respondent but

since he was not fructified due to some technical glitches, he had

resorted to the manual mode and the same was accepted by the office

of the 1st respondent vide acknowledgment dated 28.08.2019. In that

view of the matter, it is quite unjust and illegal on the part of the

1st respondent to reject the appeal only on the sole ground that appeal

was not filed electronically. Learned counsel relied upon the

judgment of Division Bench of this Court in W.P.No.9324 of 2019 to

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argue that in similar circumstances this Court directed the respondent

Department therein to receive the appeal and pass appropriate orders.

5. Per contra, learned Government Pleader representing learned

Additional Advocate General – II would vehemently argue that as

many as three check memos dated 24.02.2020, 17.03.2020 and

06.06.2020 were issued to the petitioner to comply with certain

defects in his appeal but without first rectifying the defects and

electronically uploading the appeal, the appellant has resorted to the

writ petition, which is untenable. Learned Government Pleader

sought to argue that it is only when an appellant complies with the

conditions narrated in Rule 108(1) of APGST Rules, 2017 i.e., filing

the appeal with required documents and forms, then only the question

of choosing one of the modes of filing does arise (i.e., either

electronically or manually). When the petitioner/appellant has not

complied with the check memos, he has no right to claim that his

appeal which was filed manually should be accepted.

6. The point for consideration is whether there are merits in the

writ petition to allow.

7. We have given anxious consideration to the facts and above

respective arguments. The operative portion of the impugned order

reads thus:

“As seen from the above provisions the appeal

should be filed either electronically or otherwise as may
be notified by the Chief Commissioner it does not mean
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manual filing of the appeal, till now the Chief

Commissioner has not given any instruction to accept the
manual filing of the appeal.”

8. The above order would show that the appeal was rejected on the

prime observation that though an appellant can file the appeal either

electronically or otherwise, it does not mean that manual filing of the

appeal can be done since the Chief Commissioner has not given any

instructions to accept the manual filing of the appeal as of now. We

are afraid, this interpretation of Rule 108 of AP GST Rules, 2017, is

not correct.

9. For better appreciation, Rule 108(1) of AP GST Rules, 2017 is

extracted here.

“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.”

10. As can be seen from Rule 108(1) of AP GST 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 AP GST

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 specifies

one particular mode of filing, the concerned appellant can choose to

file the appeal either electronically or otherwise i.e., manually. In that

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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 AP GST Rules, 2017.

11. In similar circumstances, Division Bench of this Court in

W.P.No.9324 of 2019, dated 01.08.2019, held thus:

“Having regard to the facts and submissions and as the

case of the petitioner requires adjudication on merits and
when substantial justice is pitted against technical
considerations, it is always necessary to prefer the ends
of justice, we are of the considered view that the request
of the petitioner merits consideration. Such course also
would help the petitioner in having his cause decided on
merits.”

12. The other argument of learned Government Pleader

representing learned Additional Advocate General – II also is not

formidable. All the check memos referred to by him were issued only

after filing of the appeal manually. Thereafter, the appellate authority

has rejected the appeal not on the merits but on the sole ground as we

mentioned supra. Since the rejection order is contrary to Rule 108(1)

of AP GST Rules, 2017, the same is liable to be set aside.

13. In the result, this writ petition is allowed setting aside the

impugned order passed by the 1st respondent with a direction that the

1st respondent shall receive the appeal, process the same and if there

are any defects in the appeal, issue suitable check memos for
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compliance by the petitioner, in which case, the petitioner shall

comply the same within the time prescribed and resubmit the appeal

either electronically or manually whereupon the 1st respondent shall

consider the appeal and after hearing the petitioner, pass appropriate

order on merits in accordance with the governing law and rules.

As a sequel, miscellaneous applications pending for

consideration, if any, shall stand closed. No costs.

_________________________
U.DURGA PRASAD RAO, J

_______________
J.UMA DEVI, J

11.02.2021
SS