2024 (5) TMI 1184 - HC - GST

Appellate authority can condone delay beyond one month under Section 107 West Bengal GST Act

The HC dismissed a petition challenging the rejection of an appeal under Section 107 of the West Bengal GST Act, 2017. The appellate authority had refused ... Condonation of delay in filing appeal - Dismissal of the appeal preferred under Section 107 of the West Bengal Goods and Services Tax Act, 2017 - appeal was barred by limitation but not accompanied by an application under Section 5 of the Limitation Act, 1963 - 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, and by placing reliance on the judgment delivered by the Hon’ble Supreme Court in the case of 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. Having regard to the above, 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. It also appears that another Hon’ble Division Bench of this Court in the case of KAJAL DUTTA. VERSUS ASSISTANT COMMISSIONER OF STATE TAX, SURI CHARGE & ORS. [2023 (1) TMI 1097 - CALCUTTA HIGH COURT] had while considering the provisions of Section 107(4) of the said Act, held that the statute does not state that beyond the prescribed period of limitation, the Appellate Authority cannot exercise jurisdiction. The observations made by the Appellate Authority that it can condone the delay, provided the same is presented within a period of one month from the prescribed period, cannot be sustained and the same is accordingly set aside - no relief can be granted in favour of the petitioner at this stage - Petition disposed off. Issues involved: Challenge to dismissal of appeal under Section 107 of West Bengal Goods and Services Tax Act, 2017 due to delay and jurisdiction of Appellate Authority to condone delay beyond prescribed period.Summary:The petitioner filed a writ petition challenging the dismissal of an appeal under Section 107 of the West Bengal Goods and Services Tax Act, 2017 due to delay. The Appellate Authority had dismissed the appeal as it was beyond the prescribed period and not accompanied by an application under Section 5 of the Limitation Act, 1963. The petitioner contended that the Appellate Authority had erred in not condoning the delay beyond one month from the prescribed period for filing the appeal, as allowed under Section 107(4) of the said Act. The petitioner relied on a previous judgment by the High Court to support their argument that Section 5 of the Limitation Act should apply in this case.On the other hand, the State respondents argued that the Appellate Authority did not have the power to condone the delay beyond the specified period of one month, as the Act is a self-contained code that excludes the applicability of Section 5 of the Limitation Act, 1963. They cited a judgment from the Allahabad High Court to support their position.The Court considered the arguments presented by both parties and reviewed relevant legal provisions and precedents. It noted that a previous Division Bench judgment had concluded that the Appellate Authority could condone the delay beyond one month from the prescribed period, as there was no specific exclusion of Section 5 of the Limitation Act. Another Division Bench had also held that the Appellate Authority could exercise jurisdiction beyond the prescribed period of limitation.Ultimately, the Court set aside the Appellate Authority's decision that it could only condone the delay if presented within one month from the prescribed period. However, since the petitioner had not filed an application for condonation of delay, the Court could not grant relief at that stage. The petitioner was given the opportunity to apply before the Appellate Authority for condonation of delay within two weeks, with the Appellate Authority instructed to consider the application in accordance with the law.In conclusion, the writ petition was disposed of, allowing the petitioner to seek condonation of delay before the Appellate Authority within the specified timeframe.