Section 5 Limitation Act Applies to Section 107 Appeals, Allowing Delay Extension in Appellate Authority Cases

The HC held that Section 5 of the Limitation Act, 1963 applies to the appeal period prescribed under Section 107 of the Act of 2017, allowing condonation of delay in filing appeals before the Appellate Authority. Since the Appellate Tribunal under Section 109 is not established in the State, the statutory remedy of appeal to the Tribunal is unavailable. The court rejected the revenue's contention that limitation periods under Section 107 exclude Section 5 of the Limitation Act. The HC found no express or implied exclusion of Section 5 and held that the prescribed 30-day appeal period plus a discretionary 30-day extension is not absolute. Accordingly, the Appellate Authority may extend the appeal period in appropriate cases. The decision favored the appellant by allowing condonation of delay and against the revenue.

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Issues Involved:
1. Applicability of Section 5 of the Limitation Act, 1963 to the appeal filing period under Section 107 of the West Bengal Goods and Services Tax Act, 2017.
2. Whether the Appellate Authority has the power to condone delay beyond the prescribed period.

Summary:

Issue 1: Applicability of Section 5 of the Limitation Act, 1963

The appellant, a partnership firm, was served with a show cause notice alleging suppression of sales. An assessment order was passed on April 23, 2019, and the appellant filed an appeal on December 16, 2019, beyond the 60-day limit. The appellate authority refused to condone the delay citing Section 170 of the West Bengal Goods and Services Tax Act, 2017. The learned Single Bench held that no appeal could be preferred beyond 4 months from the date of communication of the order, referencing the Supreme Court decision in New India Assurance Company Ltd vs. Hilli Multipurpose Cold Storage Private Limited.

Ms. Suman Schanabis (Mondal), for the appellant, argued that Section 107 of the Act of 2017 does not prohibit the applicability of Section 5 of the Limitation Act, 1963. She cited Kajal Dutta vs. Assistant Commissioner of State Tax and Superintending Engineer/Dehar Power House Circle Bhakra Beas Management Board (PW) Slapper and Another vs. Excise and Taxation Officer Sunder Nagar/Assessing Authority to support this contention.

Ms. Rima Sarkar, for the State, contended that the delay was not adequately explained and relied on Assistant Commissioner (CT) LTU. Kakinada vs. Glaxo Smith Kline Consumer Healthcare Limited and New India Assurance Company Ltd to argue that delay beyond 4 months could not be condoned under Section 107 of the Act of 2017.

The court analyzed Section 107 of the Act of 2017 and Section 29 (2) of the Act of 1963, concluding that Section 5 of the Limitation Act, 1963, applies as it is not expressly or impliedly excluded by Section 107 of the Act of 2017. The court held that the period for filing an appeal could be extended by the Appellate Authority in given facts and circumstances.

Issue 2: Power to Condon Delay Beyond Prescribed Period

The court noted that the Appellate Authority did not assess the quality of the appellant's claim for condonation of delay, operating under the belief that it lacked the power to condone delays beyond 60 days. The learned Single Judge also held the same view.

The court set aside the impugned orders of the learned Single Judge and the Appellate Authority, directing the Appellate Authority to consider the application for condonation of delay on merits. If the explanations for the delay are deemed sufficient, the Appellate Authority may condone the delay and hear the appeals on merits.

With these observations, the appeals were disposed of without any order as to costs.

[DEBANGSU BASAK, J.]

[MD. SHABBAR RASHIDI, J.]

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