2024 (5) TMI 318 - HC - GST

GST appellate authority must consider delay condonation applications under Section 5 Limitation Act through Section 29(2)

The HC set aside the appellate authority's order rejecting an appeal under Section 107 of the West Bengal GST Act, 2017 for delay. Following the Division ... Time Limitation - Refusal on the part of the appellate authority to condone the delay in maintaining the appeal under Section 107 of the West Bengal Goods and Services Tax Act, 2017 - determination under Section 73 of the said Act. Whether the appellate authority had failed to exercise jurisdiction in rejecting the application for condonation of delay, inter alia, on the ground that the same was filed beyond the maximum period of four months from the date of communication of the order? HELD THAT:- An identical issue had fell for consideration before the Hon’ble Division Bench of this Court in the case of S.K. CHAKRABORTY & SONS VERSUS UNION OF INDIA & ORS. [2023 (12) TMI 290 - CALCUTTA HIGH COURT]. The Division Bench of this Court, while considering the scope and ambit of Section 107 of the said Act and the applicability of Section 5 of the Limitation Act 1963 on the basis of the provisions contained in Section 29(2) of the Limitation Act 1963, and by placing reliance on the judgment delivered by the Hon’ble Supreme Court in the case SUPERINTENDING ENGINEER/ DEHAR POWER HOUSE CIRCLE BHAKRA BEAS MANAGEMENT BOARD (PW) SLAPPER & ANOTHER VERSUS EXCISE AND TAXATION OFFICER, SUNDER NAGAR/ASSESSING AUTHORITY [2019 (11) TMI 6 - SUPREME COURT]], had concluded that in absence of non obstante clause rendering Section 29(2) of the Limitation Act 1963, non applicable and in absence of specific exclusion of Section 5 of the Limitation Act, 1963, it would be improper to read implied exclusion thereof. The appellate authority is not denude of its power to condone the delay beyond one month from the prescribed period of limitation as provided for in Section 107(4) of the said Act. The appellate authority had failed to exercise jurisdiction in refusing to consider the application for condonation of delay in its proper perspective, since the same was filed beyond the prescribed period of four months from the date of communication of the order appealed against - order passed by the Appellate Authority in rejecting the appeal on the ground of delay is set aside - petition disposed off. Issues involved: Challenge to refusal of appellate authority to condone delay in maintaining appeal u/s 107 of West Bengal Goods and Services Tax Act, 2017.Summary:The petitioner filed a writ petition challenging the refusal of the appellate authority to condone the delay in maintaining the appeal under Section 107 of the West Bengal Goods and Services Tax Act, 2017. The petitioner had filed an appeal beyond the limitation period accompanied by an application under Section 5 of the Limitation Act, 1963. The appellate authority rejected the application for condonation of delay and disposed of the appeal. The petitioner argued that the appellate authority failed to exercise jurisdiction by not condoning the delay, while the State contended that the provisions of the Act exclude the applicability of Section 5 of the Limitation Act, 1963.In the judgment, it was noted that an identical issue had been considered by a Division Bench of the Court previously. The Court held that the appellate authority is not devoid of power to condone the delay beyond one month from the prescribed period of limitation as provided for in Section 107(4) of the Act. Another Division Bench had also held that the statute does not prohibit the appellate authority from exercising jurisdiction beyond the prescribed period of limitation. The Court found that the appellate authority had failed to exercise jurisdiction in refusing to consider the application for condonation of delay properly and set aside the order rejecting the appeal.The Court further held that the explanation provided by the petitioner in the application under Section 5 of the Limitation Act was satisfactory, and the delay in preferring the appeal was condoned. The appellate authority was directed to hear and dispose of the appeal on merits within two months without unnecessary adjournments. The writ petition was disposed of accordingly, with no order as to costs.