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of <h1>Petition for condonation of delay in GST appeal dismissed as Section 5 Limitation Act applies with alternate remedy available</h1> <h3>Vishal Kumar Gupta, (Proprietor of M/s Arya Enterprises) Versus Union of India, The Secretary, Department of Revenue, Government of India, New Delhi., The Principal Commissioner of Central Goods and Service Tax, Patna, The Commissioner of Central Tax, The Joint Commissioner of State Tax, Circle Siwan, The State Tax Appellat Authority, Saran, The Additional Commissioner of State Tax Chapra.</h3> The HC dismissed a petition seeking condonation of delay in filing an appeal under GST law. The court held that Section 5 of the Limitation Act applies ... Condonation of delay in filing appeal - power to condone delay - Applicability of Section 5 of the Limitation Act - HELD THAT:- The principles as discernible from the aforesaid indicates various situations and contingencies under which the applicability of Section 5 of the Limitation Act is to be looked into. In Hukumdev Narayan Yadav [1973 (12) TMI 92 - SUPREME COURT], the special statute, the R.P. Act, contained a provision which mandated that the High Court shall dismiss the election petition, if the provisions of Section 81 were not complied with. In Section 81 there was a stipulation that an election petition shall be filed within a period of forty-five days from the date of the election of the returned candidate. In New India Assurance Company Limited [2020 (3) TMI 1368 - SUPREME COURT], the special statute, the Consumer Protection Act, provided a specific time period for responding to the complaint and further provided a period of fifteen days; which further period was to be granted at the discretion of the District Forum. When there is a period provided for initiating a proceeding and it is also provided that the authority/tribunal/court before which a proceeding is to be initiated would have the power to condone the delay if sufficient cause for the delay is shown, without specifying the period within which delayed proceedings can be initiated, then necessarily the provision under Section 5 of the Limitation Act would be fully applicable; or rather, the provision would be similar to Section 5 of the Limitation Act. Further, The Central Board of Indirect Taxes and Customs has by Notification No. 53 of 2023-Central Tax, dated 02.11.2023 (S.O. 4767 (E)) extended the time for filing appeal against an order passed by the Proper Officer on or before 31.03.2023 under Sections 73 and 74 of the BGST Act. This in fact extends the period for filing a delayed appeal beyond the one-month period as provided under Section 107 (4) of the BGST Act, on following the special procedure prescribed under the said Notification. There are no reason to invoke the extraordinary jurisdiction under Article 226, especially since it is not a measure to be employed where there are alternate remedies available and the assessee has not been diligent in availing such alternate remedies within the stipulated time - petition dismissed. Issues Involved:1. Delay in filing the appeal.2. Applicability of Section 5 of the Limitation Act to the Bihar Goods and Services Tax Act, 2017 (BGST Act).3. Jurisdiction under Article 226 of the Constitution of India.4. Notification extending the time for filing an appeal.Detailed Analysis:1. Delay in Filing the Appeal:The writ petition challenges the appellate order dated 29.04.2024, which rejected the appeal due to delay. The initial order of assessment was passed on 20.09.2023. Under Section 107 of the BGST Act, an appeal should be filed within three months, with a possible extension of one month for delay condonation. The appeal should have been filed by 19.12.2023 or with delay condonation by 18.01.2024. However, the appeal was filed on 31.03.2024, well beyond the permissible period.2. Applicability of Section 5 of the Limitation Act:The petitioner cited a decision from the Calcutta High Court, which held that Section 5 of the Limitation Act applies to the West Bengal Goods and Services Tax Act, 2017, a statute similar to the BGST Act. The Calcutta High Court decision relied on Supreme Court judgments in New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Private Limited, Superintending Engineer/Dehar Power House Circle Bhakra Beas Management Board (PW) Slapper v. Excise and Taxation Officer, and Assistant Commissioner (CT) LTU, Kakinada v. Glaxo Smith Kline Consumer Health Care Limited. The Patna High Court noted that while the Calcutta High Court's decision is persuasive, it is not binding.The Supreme Court's decisions in New India Assurance Company Limited and Assistant Commissioner (CT) LTU, Kakinada were examined. In New India Assurance Company Limited, the Supreme Court held that the legislature intended a strict time limit for filing responses under the Consumer Protection Act. Similarly, in Assistant Commissioner (CT) LTU, Kakinada, the Supreme Court ruled that the appellate authority could not condone delays beyond the specified period under the Andhra Pradesh Value Added Tax Act, 2005.The Patna High Court also referred to Hongo India (P) Limited, which examined the Central Excise Act and found that the legislative scheme did not permit the application of Section 5 of the Limitation Act for certain proceedings. The Court concluded that the BGST Act's scheme, which specifies a period for filing appeals and a further period for delay condonation, excludes the application of Section 5 of the Limitation Act.3. Jurisdiction under Article 226 of the Constitution of India:The petitioner sought relief under Article 226 of the Constitution. However, the Court emphasized that writ jurisdiction should not undermine or defeat the statutory regime. The Supreme Court in Assistant Commissioner (CT) LTU, Kakinada held that the High Court's powers under Article 226 are not wider than the Supreme Court's plenary powers under Article 142. The Patna High Court reiterated that Article 226 should not be used to bypass statutory limitations.4. Notification Extending the Time for Filing an Appeal:The Central Board of Indirect Taxes and Customs issued Notification No. 53 of 2023-Central Tax, extending the time for filing appeals against orders passed by the Proper Officer on or before 31.03.2023 under Sections 73 and 74 of the BGST Act. This notification allowed appeals to be filed by 31.01.2024 if certain conditions were met. The petitioner did not utilize this extended period.Conclusion:The Court found no reason to invoke its extraordinary jurisdiction under Article 226, especially given the availability of alternate remedies which the petitioner failed to diligently pursue. The law favors the diligent, and the petitioner's delay was inexcusable. Consequently, the writ petition was dismissed.
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