2023 (12) TMI 290 - HC - GST

Condonation of delay in filing appeal before the appellate authority - applicability of provisions of section 5 of the Limitation Act, 1963 are attracted to the appeal filing period of limitation prescribed under Section 107 of the Act of 2017 or not - HELD THAT - Parties have agreed that, Appellate Tribunal contemplated under Section 109 of the Act of 2017 has not been established so far as the State of West Bengal is concerned, as on date. The statutory remedy of approaching the Tribunal against the order of the Appellant Authority impugned in the writ petition is therefore not available to the appellant. In Assistant Commissioner (CT) LTU. Kakinada 2020 (5) TMI 149 - SUPREME COURT , the Supreme Court has considered the issue as to whether the High Court in exercise of its writ jurisdiction ought to entertain a challenge to an assessment order on the sole ground that the statutory remedy appeal against that order stood foreclosed by the law of limitation or not. It has answered such issue in the negative against the writ petitioner and in favour of the revenue. It had observed that, where the writ petitioner has statutory alternative remedy available and did not avail of such remedy within the statutory period of limitation prescribed the writ courts should exercise self-restrain and not entertain a writ petition at the behest of such writ petitioner. A Constitution Bench of the Supreme Court has, in New India Assurance Company Ltd 2020 (3) TMI 1368 - SUPREME COURT held that, the period of limitation for filing reply/response to the complaint, under the provisions of Section 13 of the Consumer Protection Act, 1986 cannot be extended beyond the prescribed period of 30 days along with a discretionary extension of 15 days aggregating to 45 days from the date of receipt of the copy of the complaint. Section 107 of the Act of 2017 does not exclude the applicability of the Act of 1963 expressly. It does not exclude the applicability of the Act of 1963 impliedly also if one has to consider the provisions of Section 108 of the Act of 2017 which provides for a power of revision to the designated authority, against an order of adjudication. In case of revision a far more enlarged period of time for the Revisional Authority to intervene has been prescribed. Two periods of limitations have been prescribed for two different authorities namely, the Appellate Authority and the Revisional Authority in respect of the same order of adjudication - Section 107 does not have a non-obstante clause rendering Section 29(2) of the Act of 1963 nonapplicable. In absence of specific exclusion of the Section 5 of the Act of 1963 it would be improper to read an implied exclusion thereof. Moreover, Section 107 in its entirety has not expressly stated that, Section 5 of the Act of 1963 stands excluded. Since provisions of Section 5 of the Act of 1963 have not been expressly or impliedly excluded by Section 107 of the Act of 2017 by virtue of Section 29 (2) of the Act of 1963, Section 5 of the Act of 1963 stands attracted. The prescribed period of 30 days from the date of communication of the adjudication order and the discretionary period of 30 days thereafter, aggregating to 60 days is not final and that, in given facts and circumstances of a case, the period for filling the appeal can be extended by the Appellate Authority. The issue that has been framed is answered in the affirmative, in favour of the appellant and against the revenue.

Summary

Issues Involved:
1. Applicability of Section 5 of the Limitation Act, 1963 to the appeal filing period under Section 107 of the West Bengal Goods and Services Tax Act, 2017.
2. Whether the Appellate Authority has the power to condone delay beyond the prescribed period.

Summary:

Issue 1: Applicability of Section 5 of the Limitation Act, 1963

The appellant, a partnership firm, was served with a show cause notice alleging suppression of sales. An assessment order was passed on April 23, 2019, and the appellant filed an appeal on December 16, 2019, beyond the 60-day limit. The appellate authority refused to condone the delay citing Section 170 of the West Bengal Goods and Services Tax Act, 2017. The learned Single Bench held that no appeal could be preferred beyond 4 months from the date of communication of the order, referencing the Supreme Court decision in New India Assurance Company Ltd vs. Hilli Multipurpose Cold Storage Private Limited.

Ms. Suman Schanabis (Mondal), for the appellant, argued that Section 107 of the Act of 2017 does not prohibit the applicability of Section 5 of the Limitation Act, 1963. She cited Kajal Dutta vs. Assistant Commissioner of State Tax and Superintending Engineer/Dehar Power House Circle Bhakra Beas Management Board (PW) Slapper and Another vs. Excise and Taxation Officer Sunder Nagar/Assessing Authority to support this contention.

Ms. Rima Sarkar, for the State, contended that the delay was not adequately explained and relied on Assistant Commissioner (CT) LTU. Kakinada vs. Glaxo Smith Kline Consumer Healthcare Limited and New India Assurance Company Ltd to argue that delay beyond 4 months could not be condoned under Section 107 of the Act of 2017.

The court analyzed Section 107 of the Act of 2017 and Section 29 (2) of the Act of 1963, concluding that Section 5 of the Limitation Act, 1963, applies as it is not expressly or impliedly excluded by Section 107 of the Act of 2017. The court held that the period for filing an appeal could be extended by the Appellate Authority in given facts and circumstances.

Issue 2: Power to Condon Delay Beyond Prescribed Period

The court noted that the Appellate Authority did not assess the quality of the appellant's claim for condonation of delay, operating under the belief that it lacked the power to condone delays beyond 60 days. The learned Single Judge also held the same view.

The court set aside the impugned orders of the learned Single Judge and the Appellate Authority, directing the Appellate Authority to consider the application for condonation of delay on merits. If the explanations for the delay are deemed sufficient, the Appellate Authority may condone the delay and hear the appeals on merits.

With these observations, the appeals were disposed of without any order as to costs.

[DEBANGSU BASAK, J.]

[MD. SHABBAR RASHIDI, J.]