GST UPDATE

????Desk of CA. Praveen Sharma Series- 516???? 

CALCUTTA HIGH COURT Partha Pratim Dasgupta Affidavit of service filed in Court today is taken on record.

This writ petition has been filed, among other things, to challenge the purported rejection of the appeal under Section 107 of the West Bengal Goods and Service Tax Act, 2017 (hereinafter referred to as the said Act) as indicated in form GST-APL 02 dated 28th March, 2024.

Mr. Mazumder, the learned advocate representing the petitioner, submits that the petitioner, being aggrieved by the order dated 4th October, 2023 passed under Section 73(9) of the said Act, filed an appeal on 27th February, 2024, as evidenced by Form GST APL 01.

By drawing the Court's attention to page 35 of the writ petition, it is submitted that the appeal was filed along with a 10% pre-deposit of the disputed tax amount. A system-generated provisional acknowledgment form was also issued as proof of the appeal submission. Since the appeal was filed beyond the prescribed time limit, an application for condonation of delay was also submitted. According to the petitioner, there was a delay of 55 days in filing the appeal.

Subsequently, on 14th March, 2024, the petitioner received a notice asking why the appeal should not be rejected due to the delay, as it was filed more than one month beyond the prescribed period under Section 107(1) read with Section 107(4) of the said Act.

Mr. Mazumder, by drawing the Court's attention to the impugned order, submits that the Appellate Authority, by ignoring the explanation given by the petitioner and relying on the proviso to sub-section (4) of Section 107 of the said Act, concluded that it had no power to allow the appeal filed beyond one month after the prescribed period. According to the petitioner, the petitioner has not only a statutory right to prefer an appeal but also a right to seek condonation of delay. It is apparent from the order that the Appellate Authority failed to exercise its jurisdiction by rejecting the appeal solely on the ground that it does not have the competence to condone the delay beyond one month of the prescribed time.

Mr. Siddiqui, the learned advocate appearing on behalf of the respondents, opposes the petition. He submits that since the statute provides for the period within which delay can be condoned, there is no irregularity on the part of the Appellate Authority in refusing to condone the delay beyond the one-month period from the prescribed time.

After hearing the learned advocates and considering the materials on record, it is evident that the appeal was dismissed solely on the ground that it was filed beyond one month of the prescribed time, making it time-barred. However, this does not prevent the petitioner from maintaining an application for condonation of delay under Section 5 of the Limitation Act, 1963. The issue of whether the Appellate Authority can condone the delay beyond one month of the prescribed period has already been conclusively decided by the Hon’ble Division Bench of this Court in S. K. Chakraborty & Sons vs. Union of India, reported in 2023 SCC Online Calcutta 4759, [2023] 67 TCalcutta).

Given the above, I believe the Appellate Authority should have considered the explanation provided in the application for condonation of delay under Section 5 of the Limitation Act, 1963.

Consequently, the order rejecting the appeal dated 28th March, 2024, as indicated in Form GST APL-02, is set aside. Considering that remanding the matter back to the Appellate Authority for the issue of condonation of delay would serve no fruitful purpose and taking into account the petitioner's explanation, I find that the petitioner has sufficiently explained the delay. Therefore, I restore the appeal to its original file and number and direct the Appellate Authority to hear the appeal on its merits within two months from the date of communication of this order.

Since no affidavit-in-opposition was requested, the allegations made in the writ petition are deemed not to have been admitted by the respondents.

With these observations and directions, the writ petition is disposed of.

An urgent Photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities.