TaxTMI 
TaxTMI 
2026 (7) TMI 1342
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....B) No.465 of 2025, Writ Petition (M/B) No.466 of 2025, Writ Petition (M/B) No.468 of 2025, Writ Petition (M/B) No.485 of 2025, Writ Petition (M/B) No.488 of 2025, Writ Petition (M/B) No.491 of 2025, Writ Petition (M/B) No.535 of 2025, Writ Petition (M/B) No.537 of 2025, Writ Petition (M/B) No.538 of 2025, Writ Petition (M/B) No.539 of 2025, Writ Petition (M/B) No.553 of 2025, Writ Petition (M/B) No.596 of 2025, Writ Petition (M/B) No.619 of 2025, Writ Petition (M/B) No.659 of 2025, Writ Petition (M/B) No.743 of 2025, Writ Petition (M/B) No.763 of 2025, Writ Petition (M/B) No.804 of 2025, Writ Petition (M/B) No.858 of 2025, Writ Petition (M/B) No.874 of 2025, Writ Petition (M/B) No.882 of 2025, Writ Petition (M/B) No.889 of 2025, Writ Petition (M/B) No.908 of 2025, Writ Petition (M/B) No.913 of 2025, Writ Petition (M/B) No.924 of 2025, Writ Petition (M/B) No.959 of 2025, Writ Petition (M/B) No.1033 of 2025, Writ Petition (M/B) No.1034 of 2025, Writ Petition (M/B) No.1081 of 2025, Writ Petition (M/B) No.82 of 2026 Writ Petition (M/B) No.113 of 2026 Writ Petition (M/B) No.122 of 2026 Writ Petition (M/B) No.123 of 2026 Writ Petition (M/B) No.161 of 2026 ....
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....person. (2) The Commissioner may, on his own motion, or upon request from the Commissioner of State tax or the Commissioner of Union territory tax, call for and examine the record of any proceedings in which an adjudicating authority has passed any decision or order under this Act or the State Goods and Services Tax Act or the Union Territory 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 authorised 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 order of the adjudicating authority and such authorised officer were an appellant and the provisions of this Act relating to appeals shall apply to such app....
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....r confiscating goods of greater value or reducing the amount of refund or input tax credit shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order: Provided further that where the Appellate Authority is of the opinion that any tax has not been paid or short-paid or erroneously refunded, or where input tax credit has been wrongly availed or utilised, no order requiring the appellant to pay such tax or input tax credit shall be passed unless the appellant is given notice to show cause against the proposed order and the order is passed within the time limit specified under section 73 or section 74 4[or section 74A]. (12) The order of the Appellate Authority disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for such decision. (13) The Appellate Authority shall, where it is possible to do so, hear and decide every appeal within a period of one year from the date on which it is filed: Provided that where the issuance of order is stayed by an order of a court or Tribunal, the period of such stay shall be exclu....
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....rder was passed on January 31, 2025, while the writ petition was filed on July 3, 2025. It is to be noted that Section 107 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as the 'Act'), provides for a statutory appeal against the order passed under Section 74 of the Act. The period prescribed therein is three months. By way of sub-section (4) to Section 107 of the Act, if sufficient cause is shown, the period may be extended for a month. As the Act provides for a specific period for filing of appeal and also provides for an extended period, if sufficient cause is shown for condoning the delay in filing of the appeal, Section 29(2) of the Limitation Act, 1963 would be applicable. Section 29(2) of the Limitation Act reads as under: "29. Savings .- (1) ..... (2) Where any 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 for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any ....
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....e month. The provision thus prescribes an additional period of one month within which an appeal may be instituted. That section however stops at that and does not allude to aspects such as sufficient cause or other similar factors which may have prevailed and led to the appeal not being lodged within the time prescribed. The provision thus clearly excludes the general principles which the law recognises as relevant for the purposes of condonation of delay. It is this facet of Section 107(4) which appears to have weighed upon various High Courts to hold that the said provision excludes the principles underlying Section 5 and other provisions concerned with condonation contained in the Limitation Act. It is this facet which triggers Section 29 of the Limitation Act and results in the exclusion of the other provisions governing condonation contained in that statute. 69. In summary, the power to condone delay caused in pursuing a statutory remedy would always be dependent upon the statutory provision that governs. The right to seek condonation of delay and invoke the discretionary power inhering in an appellate authority would depend upon whether the statute creates a special ....
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....sly permitted by the statute. 11. The Supreme Court further rejected the contention that the constitutional jurisdiction of the High Court or the plenary power of the Supreme Court could be invoked to condone the delay on sufficient cause being shown, as it would defeat the legislative intent and render the limitation provision nugatory. The declaration of law on the said point in Paragraph Nos.8 to 10 is as follows :- "8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short "the Limitation Act") can be availed for condonation of delay. 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 aforesa....
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....eserves to be dismissed which we direct. There will be no order as to costs." 12. The same principle was reiterated by the Supreme Court in "Commissioner of Customs and Central Excise vs. Hongo India Pvt. Ltd.", reported in (2009) 5 SCC 791, while considering the applicability of Section 5 of the Limitation Act to proceedings under Section 35-H of the Excise Act. The Supreme Court examined the scheme of the Central Excise Act and reiterated that the applicability of Section 5 of the Limitation Act is to be gathered from the legislative scheme of the special enactment and that an express exclusion is not necessary, where a special statute prescribes a complete code governing limitation and circumscribes the extent to which delay can be condoned. 13. It is noteworthy that Section 35-H of the Excise Act, which was interpreted, only provides for a particular period of limitation, i.e. 180 days and there is no other clause for condoning the delay, nor any specific provision excluding the applicability of Section 5 of the Limitation Act. It is as follows :- "35-H. Application to High Court :- (1) The Commissioner of Central Excise or the other party may, within one hundred....
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.... the High Court to condone the delay after the period of 180 days. 18. The learned Additional Solicitor General relying on the judgment of this Court in Union of India vs. M/s Popular Construction Co., (2001) 8 SCC 470 contended that in the absence of specific exclusion of the Limitation Act in the Central Excise Act, in lieu of Section 29(2) of the Limitation Act, Section 5 of the same is applicable even in the case of reference application to the High Court. 32. As pointed out earlier, the language used in Sections 35, 35B, 35EE, 35G and 35H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The H....
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....scheme of the Central Excise Act, 1944 support the conclusion that the time limit prescribed under Section 35H(1) to make a reference to High Court is absolute and unextendable by court under Section 5 of the Limitation Act. It is well settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act. 37. In the light of the above discussion, we hold that the High Court has no power to condone the delay in filing the "reference application" filed by the Commissioner under unamended Section 35H(1) of the Central Excise Act, 1944 beyond the prescribed period of 180 days and rightly dismissed the reference on the ground of limitation." (emphasis supplied) 15. The doctrine of implied exclusion without specific reference to any provision of the Limitation Act, relied up by the Supreme Court in Hongo India (supra), has been consistently followed by the Supreme Court in large number of its other decisions. 16. In Patel Brothers vs. State of Assam & others, reported in (2017) 2 SCC 350, the Supreme Court considered the question of applicabili....
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.... of the Limitation Act applicable to the proceedings under the VAT Act. The apparent legislative intent, which can be clearly evinced, is to exclude other provisions, including Section 5 of the Limitation Act. Section 29(2) stipulates that in the absence of any express provision in a special law, provisions of Sections 4 to 24 of the Limitation Act would apply. If the intention of the legislature was to make Section 5, or for that matter, other provisions of the Limitation Act applicable to the proceedings under the VAT Act, there was no necessity to make specific provision like Section 84 thereby making only Sections 4 and 12 of the Limitation Act applicable to such proceedings, inasmuch as these two Sections would also have become applicable by virtue of Section 29(2) of the Limitation Act. It is, thus, clear that the Legislature intended only Sections 4 and 12 of the Limitation Act, out of Sections 4 to 24 of the said Act, applicable under the VAT Act thereby excluding the applicability of the other provisions. 21. The judgment in Mangu Ram would not come to the aid of the appellant as the Court found that there was no provision under Cr.P.C. from which legislative inte....
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....whether the period spent bonafidely in pursuing remedy before an incompetent forum was liable to be excluded by applying the principles of Section 14 of the Limitation Act while computing limitation for filing appeal under Section 128 of the Customs Act before the Appellate Tribunal. 20. The Supreme Court held that though the Limitation Act, strictly speaking, may not apply proprio vigore to proceedings before statutory tribunals, the equitable principle embodied in Section 14, being a principle which advances the cause of justice, would nevertheless apply. These observations (in paragraph No.38) are as follows :- "38. We have already held that the Limitation Act including Section 14 would not apply to appeals filed before a quasi-judicial tribunal such as the Collector (Appeals) mentioned in Section 128 of the Customs Act. However, this does not conclude the issue. There is authority for the proposition that even where Section 14 may not apply, the principles on which Section 14 is based, being principles which advance the cause of justice, would nevertheless apply." 21. The Supreme Court while accepting the contention that Section 128 of the Customs Act is a comple....
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....Section 14, the limitation period continues to be three months and not more, but in computing the limitation period of three months for the application under Section 34(1) of the AC Act, the time during which the applicant was prosecuting such application before the wrong court is excluded, provided the proceeding in the wrong court was prosecuted bona fide, with due diligence. Western Builders [(2006) 6 SCC 239] therefore lays down the correct legal position." 43. Merely because Parson Tools also dealt with a provision in a tax statute does not make the ratio of the said decision apply to a completely differently worded tax statute with a much shorter period of limitation - Section 128 of the Customs Act. Also, the principle of Section 14 would apply not merely in condoning delay within the outer period prescribed for condonation but would apply de hors such period for the reason pointed out in Consolidated Engineering above, being the difference between exclusion of a certain period altogether under Section 14 principles and condoning delay. As has been pointed out in the said judgment, when a certain period is excluded by applying the principles contained in Section 14,....
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....A careful reading of the aforesaid judgment reveals that the conclusion reached therein turned entirely upon the scheme of the State Legislation. The Court noticed that the Act contained provisions conferring vide suo motu power of revision upon the Commissioner and in such case a much larger period of limitation of five years and, viewed as a whole, did not manifest any legislative intent to exclude Section 5 of the Limitation Act. The Supreme Court itself distinguished Hongo India and Patel Brothers on the ground that those judgments were rendered in the context of materially different statutory schemes. This is evident from the conclusions drawn in the concluding part of the judgment, which are as follows :- "28. In the light of the decisions as mentioned earlier, when we examine the scheme of the Act of 2005, the provisions contained in section 45 provides for an appeal from every original order passed under the Act or the Rules made thereunder. Subsection (4) of section 45 provides appeal to be filed within 60 days, or such more extended period as the appellate authority may allow, for reasons to be recorded in writing. Thus, because of the provisions contained in sec....
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....r the Act of 2005 lies to the High Court, the provisions of section 5 of the Limitation Act are applicable, and there is no express exclusion of the provisions of section 5 and as per section 29(2), unless a special law expressly excludes the provision, sections 4 to 24 of the Limitation Act are applicable. When we consider the scheme of the Himachal Pradesh VAT Act, 2005, it is apparent that its scheme is not ousting the provisions of the Limitation Act from its ken which makes principles of section 5 applicable even to an authority in the matter of filing an appeal but for the said provision the authority would not have the power to condone the delay. By implication also, it is apparent that the provisions of Section 5 of the Limitation Act have not been ousted; they have the play for condoning the limitation under Section 48 of the Act of 2005. Suo motu provision of revisional power is also provided to the Commissioner within 5 years. Thus, the intendment is not to exclude the Limitation Act. We condone the delay in filing of revision." (emphasis supplied) 26. The next judgment relied up on behalf of the petitioners is in "ITC Ltd. and another vs. Union of India & others",....
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....legislative intent which can be gathered therefrom. The mere absence of an express exclusion is not conclusive, equally, the mere prescription of a period of limitation coupled with a limited power of condonation does not conclude the enquiry. The Court must ascertain whether, upon a holistic reading of the statute, the Legislature intended to exclude the operation of Section 4 to 24 of the Limitation Act. 32. Counsel for the petitioners, however, submitted that the controversy now stands concluded by the recent judgment of the Supreme Court in "Deputy Commissioner and Special Land Acquisition Officer vs. S.V. Global Mill Ltd.", reported in 2026 SCC OnLine SC 171. It is a case wherein a two Judge bench of the Supreme Court held that in an appeal to High Court against the judgment and decree of the Authority under Section 74 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the provision of Section 5 of the Limitation Act would be applicable and, thus, the High Court had the power to condone the delay in filing such an appeal beyond the period prescribed under Section 74 of the said Act. 33. While arriving at the....
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....- "74. We have dealt with the provisions contained in both the enactments in extenso already. We have also dealt with the principles of law. Upon such analysis, we reiterate that the 2013 Act is a unique piece of legislation. The Collector is given two different and distinct roles up to a certain stage of the acquisition process. The first role is to facilitate the acquisition on behalf of the Government, and the other is with respect to the determination of the compensation. For both these roles, there is no question of application of any provisions of the 1963 Act, as the Collector either acts as a statutory authority on the executive side or as a quasi- judicial authority while determining the compensation or as an authority dealing with rights having civil consequences while making a reference. In all these three acts, there is no role that is exclusively judicial. As we have already discussed, only when the issue of compensation is decided by the Authority, who is a legally trained person entitled to exercise the powers of a Civil Court, followed by the declaration of an award deemed to be a decree, does an out-and-out judicial forum enter the picture. The proceedings....
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....ct being a subsequent legislation, it is obvious that the Legislature was conscious not to take away the application of Sections 4 to 24 of the 1963 Act from its purview. 77. As Section 74 of the 2013 Act does not exclude the application of Sections 4 to 24 of the 1963 Act, a limited interpretation of Section 5 of the 1963 Act alone cannot be given. What applies to exclusion shall apply to extension as well. In our considered view, the High Court, while exercising the power under Section 74 of the 2013 Act, is certainly entitled to draw its power from the sources available under the 1963 Act. We cannot introduce words that are not available in Section 74 through an imaginary interpretation in holding the existence of an express exclusion. It is a conscious decision made by the Legislature, and its knowledge must be inferred and implied. Thus, we are inclined to hold that there is not much difference between the main provision contained in Section 74(1) and its proviso. There is only one period mentioned for filing the appeal, meaning thereby that the other one mentioned under the proviso gets subsumed within the period provided under Section 74(1). 78. Furthermore....
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....ting the provisions of a beneficial legislation enacted to secure just and fair compensation to land owners whose property is compulsorily acquired. The interpretation adopted by the court was guided by the object of advancing the remedy provided under the Act and ensuring that the substantive rights were not defeated on technical considerations relating to limitation. 39. The CGST Act, on the other hand, stands on an entirely different footing. It is a fiscal statute, constituting a self-contained code governing levy, assessment, recovery and appellate remedies under the GST regimes. The provision relating to limitation under Section 107 is an integral part of the statutory framework intended to ensure certainty, finality and expeditious adjudication of tax disputes. The nature, object and legislative scheme of the GST Act are materially different from those of the Act 2013. The limitation prescribed under Section 107 forms an integral part of the appellate remedy itself and cannot be enlarged by resort to Section 5 of the Limitation Act in absence of any statutory indication permitting such enlargement. In fact, the Supreme Court itself was conscious of the aforesaid distingui....