TaxTMI 
TaxTMI 
2024 (8) TMI 955
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....oner Appeals I Kashmir Division, Srinagar. , State Taxes Officer, Circle D, Srinagar, J&K And Others HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE And HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE For the Petitioner : Ms. Palvi Ghonkrokta, Advocate For the Respondent : Mr. D.C.Raina, AG with Mr. Syed Musaib, GA JUDGMENT Sanjeev J 1. The petitioners in all these petitions are dealers registered under Jammu & Kashmir Goods and Services Tax Act, 2017 ["the Act of 2017"] under different registration numbers. They were assessed by the respective adjudicating authority under Section 73/74 of the Act of 2017 and certain demands were raised against them. Feeling dissatisfied and aggrieved by the orders passed by the adjudicating authorities, the petitioners preferred statutory appeals before the Appellate Authority under Section 107 of the Act of 2017. The appeals preferred by the petitioners-assessees were not entertained and rejected indicating the reason for rejection as "delay in submission of appeals" 2. Since the Government is yet to constitute Appellate Tribunal, as such, the petitioners, feeling aggrieved by rejection of their appeals, are before us invoking extraordinary writ jurisdi....
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.... or order passed under this Act or the Central Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person. (2) The Commissioner may, of his own motion, or upon request from the Commissioner of central tax, call for and examine the record of any proceeding in which an adjudicating authority has passed any decision or order under this Act or the Central Goods and Services Tax Act, for the purpose of satisfying himself as to the legality or propriety of the said decision or order and may, by order, direct any officer subordinate to him to apply to the Appellate Authority within six months from the date of communication of the said decision or order for the determination of such points arising out of the said decision or order as may be specified by the Commissioner in his order. (3) Where, in pursuance of an order under sub-section (2), the authorized officer makes an application to the Appellate Authority, such application shall be dealt with by the Appellate Authority as if it were an appeal made against the decision or ord....
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....expressly excluded by such special or local law. (3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law. (4) Sections 25 and 26 and the definition of "easement" in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend." 9. From a reading of Subsection (2) of Section 29 of the Limitation Act, it is evident that where a special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and also for the purpose of determining any period of limitation prescribed for any appeal, suit or application by any special or local law, provisions contained in Sections 4 to 24 (inclusive) shall apply. However, the provisions contained in Sections 4 to 24, which include Section 5, shall apply only insofar as and to the extent to which they are not expressly excluded by such special or local law....
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....lay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no pow....
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....he Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision. 34) Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to High Court. 35. It was contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law here in this case is Central Excise Act. The nature of the remedy provided therein are such that the legislature intended ....
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....ys had elapsed, the Appellate Tribunal may, if the facts so warrant, condone the delay. It was pointed out that this would render otiose the second time limit of 45 days, which is peremptory in nature. The observations of the Supreme Court contained in paragraph Nos. 5 and 6 of the judgment are relevant and are, therefore, set out below:- "5) Another very important aspect of the case is that 45 days is the period of limitation, and a further period not exceeding 45 days is provided only if sufficient cause is made out for filing the appeal within the extended period. According to us, this is a peremptory provision, which will otherwise be rendered completely ineffective, if we were to accept the argument of learned counsel for the appellant. If we were to accept such argument, it would mean that notwithstanding that the further period of 45 days had elapsed, the Appellate Tribunal may, if the facts so warrant, condone the delay. This would be to render otiose the second time limit of 45 days, which, as has been pointed out by us above, is peremptory in nature. 6) We are fortified in this conclusion by the judgment of this Court in Chhattisgarh SEB v. Central Electricity Regulat....
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....achal Pradesh Value Added Tax Act, 2005 is clearly distinguishable. In the aforesaid case it was held that as per the scheme of the Himachal Pradesh VAT Act, 2005 the proviso contained in Section 45 provided for an appeal from every original order passed under the Act and the Rules framed thereunder. The period of limitation for filing such appeal was sixty days or such more extended period, as the Appellate Authority may allow for reasons to be recorded in writing. It was in the context of different provisions contained in Section 45 of the Himachal Pradesh Vat Act, it was concluded by the Hon'ble Supreme Court that there was nothing in the Scheme of Himachal VAT Act to exclude applicability of Section 5 of the Limitation Act, whereas Hon'ble Supreme Court in the case of Bengal Chemists and Druggists (supra) has clearly deducted from the Scheme of Central Excise Act the provisions of appeal which are in pari materia with the Act of 2017 and has authoritatively held the non-applicability of Section 5 of the Limitation Act. 16. The other judgment relied upon by the learned counsel for the petitioners is in the case of S.K.Chakrobarty v. Union of India rendered by the Calcutta High ....
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....lay, if a statute expressly prohibits condonation of delay, it generally binds the Courts. However, such prohibition contained in the statute does not take away the extraordinary jurisdiction vested in the High Court under Article under Article 226 of the Constitution of India. The High Court can, thus, condone the delay in exceptional cases where it deems it necessary to prevent miscarriage of justice, even if statute prohibits such condonation. This is particularly relevant when dealing with fundamental rights or where strict application of the statute would result in gross injustice. 21. The periods of limitation are procedural in nature. Therefore, the prohibition contained in Section 107(4) of the Act of 2017 to condone delay beyond one month cannot come in the way of Constitutional Court exercising extraordinary jurisdiction to render substantial justice. Therefore, while a statutory prohibition is a strong consideration to be kept in mind, yet it does not bar the jurisdiction of the High Court to condone the delay if it is of the opinion that application of delay barring statute would result in gross injustice. Each case is, thus, required to be evaluated on its specific fa....
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....ted the reasons of delay as under:- "a) period of delay:- b) reason of delay:- Appellant was facing severe ill health and the records were maintained by the Accountant of the appellant, who have failed to convey the notice to the appellant." 26. Neither the petitioner has disputed the date of communication of the order nor has he placed on record any material before the appellate authority to demonstrate that during the period of limitation the petitioner was under such a disability, which prevented him from filing the appeal in time. If such is the reason given by the petitioner to seek condonation of delay for the period beyond thirty days, as prescribed under Section 107(4) of the Act of 2017, this Court cannot, by any stretch of reasoning, bring the case of the petitioner under exceptional circumstances or a case of extreme nature to invoke its extraordinary jurisdiction and condone the delay despite there being statutory prohibition not to do so after a particular period. The petitioner has himself remained negligent and remissness in preferring the appeal within time and, therefore, must suffer its consequences. The assessment order passed by the adjudicating authority u....
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.... by the adjudicating authority on 16th July, 2022 under Section 74 of the Act of 2017. The order was communicated to the petitioner on the same day through GST Portal (Email/SMS). The order was communicated to the petitioner on his phone No.9797269625 and Email Id. [email protected]. 32. The appeal was preferred by the petitioner before the appellate authority on 3rd February, 2023 i.e. after six months and eighteen days. There was, thus, a delay of two months and eighteen days after the expiry of the period of thirty days envisaged under Section 107(4) of the Act of 2017. There is no separate application filed by the petitioner seeking condonation of delay. However, in the memo of appeal, the reasons given by the petitioner for delayed filing of the appeal is that the petitioner was out stationed for medical reasons as his father had suffered multiple cardiac arrests due to which he had to leave the valley for number of months for medical treatment outside the State. 33. The petitioner has not placed on record any documentary evidence in support of the aforesaid assertion nor has he given the dates during which his father remained under treatment outside the State. That being ....
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....e order was communicated to the petitioner on the same day through GST Portal (mail/SMS). The order was communicated to the petitioner on his phone No.9419088162 and Email Id. [email protected]. 38. The appeal was preferred by the petitioner before the appellate authority after four months and eleven days of the communication of the order. There was, thus, a delay of eleven days after the expiry of the period of thirty days envisaged under Section 107(4) of the Act of 2017. No separate application was filed by the petitioner seeking condonation of delay. However, in the memo of appeal, the petitioner has referred to his difficulties, which he faced on account of GST having been introduced in the Union Territory of J&K in the month of July, 2017 and that he had initially problems in understanding its provisions. There is also reference to the interruption by lockdown imposed by the Government due to Covid-19. However, requisite facts have neither been pleaded nor substantiated in the memo of appeal. 39. Although, delay in this case was only 11 days, yet in view of the clear prohibition contained in Section 107(4) of the Act of 2017, the appellate authority could not have condon....
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....tioner from filing the appeal in time, exercise of extra ordinary writ jurisdiction by this Court to condone the delay despite there being a statutory prohibition is not called for. WP(C) No.2543/2023 46. In the instant case, the order impugned in the appeal before the appellant authority was passed on 19th December, 2022 and the same was communicated to the petitioner on the same day through GST Portal (Email/SMS) on his Phone No.9858756786 and Email Id. [email protected]. 47. The appeal was filed by the petitioner before the appellate authority after six months and twenty six days. There is, thus, delay of two months and twenty six days in filing the appeal before the appellate authority after expiry of the period prescribed in Section 107(4) of the Act of 2017. A separate application was filed by the petitioner before the appellant authority for seeking condonation of delay on the ground that the petitioner was unwell on 15.03.2023 and was under treatment of a medical practitioner, who had advised him complete bed rest. 48. In the present case, the order impugned in the appeal is dated 19.12.2022 and, therefore, the petitioner being unwell on 15.03.2023 does not show any e....
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....voidable exigencies and death of father of the petitioner. However, no documents have been appended with the application seeking condonation of delay to substantiate the aforesaid assertion. 52. Neither medical certificates have been placed on record nor even the particular dates of encountering such problems and unavoidable exigencies have been indicated. The reasons stated for delayed filing of appeal by the petitioner are, therefore, ipsi dixit of the petitioner and do not bring the case of the petitioner under exceptional circumstances warranting exercise of extraordinary jurisdiction by this Court to condone the delay beyond the period specifically provided in the statute. WP(C) No.1204/2024 53. In the instant case, the order impugned in the appeal filed before the appellate authority was passed on 19th October, 2023 and the same was communicated to the petitioner on the same day through GST Portal (SMS/Email) on his phone No.9906699056 and Email Id. [email protected]. 54. The appeal was filed on 27th April, 2024 after a delay of six months and eight days. Neither specific request for condonation of delay was made nor was any reason for delayed filing of the appeal stat....