TaxTMI 
TaxTMI 
2024 (7) TMI 610
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....revity "BGST Act") permits an appeal to be filed within three months and also apply for delay condonation with satisfactory reasons within a further period of one month; which delay the Appellate Authority is empowered to condone if satisfied with the reasons stated. 3. The order impugned in the appeal was dated 20.09.2023. An appeal could have been preferred on or before 19.12.2023 and also filed with delay before 18.01.2024. The appeal is said to have been filed only on 31.03.2024, after more than two months from the date on which even the period for delay condonation, as per the statute expired. 4. The learned counsel for the petitioner produced a decision of the Division Bench of the High Court of Calcutta dated 01.12.2023 passed in M.A.T. 81 of 2022 and other analogous cases (S.K. Chakraborty & Sons v. Union of India & Ors.), wherein Section 107 of the West Bengal Goods and Services Tax Act, 2017; which provision is in pari materia with the Bihar Goods and Services Tax Act, 2017 (for brevity 'the Act of 2017') was considered. Therein after considering the decisions of the Hon'ble Supreme Court in New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Private ....
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....ays. The challenge to the order of the Tribunal under Section 48 (1), by way of a revision to the High Court was within ninety days of the communication of the order. Section 48 did not expressly exclude the Limitation Act and since Section 45 (4) expressly made applicable the principles of Section 5 of the Limitation Act; it was held, the scheme of the Act permitted condonation of delay for any period and Section 5 of the Limitation Act is not excluded. It is relying on the above three Judges Bench decision, which was of a higher numerical strength than Assistant Commissioner (CT) LTU (supra) that the learned Division Bench of the Calcutta High Court passed the afore-cited decision. 8. Assistant Commissioner (CT) LTU, Kakinada (supra), considered the specific question of the power to be exercised under Articles 226 and 32 of the Constitution, wherein it was categorically declared that the writ jurisdiction cannot be exercised in a manner undermining or defeating the applicable statutory regime. The power of the appellate authority to condone delay under the Andhra Pradesh Value Added Tax Act, 2005 was under consideration, wherein the time for filing a statutory appeal was thirty ....
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....hat Section 5 of the Limitation Act was held to be attracted. In this context, we have to necessarily refer to the decision of another co-ordinate Bench (three Judges) in Commissioner of Customs and Central Excise v. Hongo India (P) Limited [(2009) 5 SCC 791], which considered the provisions of the Central Excise Act. Superintending Engineer/Dehar Power House Circle, considering the provisions of the H.P. VAT Act, found the scheme of that Act to be materially different from the Central Excise Act; to distinguish Hongo India (P) Limited. 10. Hongo India (P) Limited (supra) considered the power to condone the delay beyond the period specified in Section 35-H of the Central Excise Act. As per the provision, application for references to the High Court ought to be made within 180 days from the date of communication of the decision or order. Considering whether the provisions of the Limitation Act stands excluded; the Hon'ble Supreme Court looked at the scheme of the special law i.e. the Central Excise Act. It was held that "even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be op....
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....presentation of the People Act, 1951, provided that inter alia it had to be filed within a period of forty-five days from the date of the election of the returned candidate. The election petition was filed on 20.03.1972 since the 18th and 19th day of March were Saturday and Sunday. On Saturday, the Judges do not sit and Sunday is a holiday for the Court and the contention was that Section 10 of the General Clauses Act could be availed. It was also contended that even otherwise Section 5 of the Limitation Act is applicable. On the first question, which is not relevant in the present case, it was found that though the Judges were not sitting, the Rules of the Patna High Court permitted the election petition to be moved before the Registrar. Having held so, the question as to whether Section 5 of the Limitation Act would apply was elaborately considered, with reference to Section 29(2) of the Limitation Act as has been done by the High Court of Calcutta. It was held so in para-17. "17. Though Section 29(2) of the Limitation Act has been made applicable to appeals both under the Act as well as under the Code of Criminal Procedure, no case has been brought to our notice where Section....
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....with while no such benefit is available in dismissing an application for non-compliance with the provisions of Sections 82 and 117 of the Act, or alternatively if the provisions of the Limitation Act do not apply to Section 82 and Section 117 of the Act, it cannot be said that they apply to Section 81. Again Section 6 of the Limitation Act which provides for the extension of the period of limitation till after the disability in the case of a person who is either a minor or insane or an idiot is inapplicable to an election petition. Similarly, Sections 7 to 24 are in terms inapplicable to the proceedings under the Act, particularly in respect of the filing of election petitions and their trial." [emphasis supplied by us with the underlining] Under the R.P. Act, if the provisions of Section 81 are not complied with, Section 86 mandates that the High Court shall dismiss the petition; which was found to be an exclusion of Section 5 of the Limitation Act. 13. 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 (supra), the spe....
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....ithin 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. When a specific time period is provided for the authority/tribunal/court before which a proceeding is to be initiated and a further period is specified for delay condonation, then there is exclusion of Section 5 of the Limitation Act. However, when there is no provision for delay condonation expressly provided and only a period of limitation for initiating the proceeding stipulated, then the scheme of the special statute will have to be looked at to understand whether Section 5 is excluded or not. 16. With the above interpretation in mind, we look at Section 107 of the Act of 2017 and we find absolutely no way to entertain the writ petition. We respectfully disagree with the dictum of the decision of the Division Bench of the Hon'ble Calcutta High Court. 17. We also have to notice the decision in Sakuru v. Tanaji [(1985) 3 SCC 590], wherein it was held that when the appeal is before a body or authority other than a 'Court', special statute under which appeal ....