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2024 (5) TMI 773 - HC - GSTCondonation of delay in filing an appeal before the appellate authority - Applicability of Section 5 of the Limitation Act, 1963 - Power and Jurisdiction of appellate authority to condone the delay beyond the prescribed period - appeal filed beyond one month from the prescribed period of limitation, as provided in Section 107 (4) of the West Bengal Goods and Services Tax Act, 2017 - HELD THAT - It may be noticed that an identical issue had fell for consideration before the Hon ble Division Bench of this Court in the case of S.K. Chakraborty Sons 2023 (12) TMI 290 - CALCUTTA HIGH COURT . The Division Bench of this Court, while considering the scope and ambit of Section 107 of the said Act and the applicability of Section 5 of the Limitation Act 1963 on the basis of the provisions contained in Section 29 (2) of the Limitation Act 1963 and by placing reliance on the judgment delivered by the Hon ble Supreme Court in the case Superintending Engineer/Dehar Power House Circle Bhakra Beas Management Board (PW) Slapper and another versus Excise and Taxation Officer Sunder Nagar/Assessing Authority 2019 (11) TMI 6 - SUPREME COURT , had concluded that in absence of non obstante clause rendering Section 29 (2) of the Limitation Act 1963, non applicable and in absence of specific exclusion of Section 5 of the Limitation Act, 1963, it would be improper to read implied exclusion thereof. The appellate authority had failed to exercise jurisdiction in refusing to entertain the application under Section 5 of the Limitation Act, since the same was filed beyond one month, beyond the prescribed period of Limitation as provided for in Section 107 (4) of the said Act. Having considered the application for condonation of delay, and the explanation offered by the petitioner, it is found that the explanation provided by the petitioner is satisfactory and delay has been sufficiently explained. Having regard thereto the delay in preferring the appeal under Section 107 of the said Act is condoned and appeal is restored to its original file and number. The writ petition is disposed of without any order as to costs.
Issues involved:
The refusal of the appellate authority to condone the delay in maintaining the appeal u/s 107 of the West Bengal Goods and Services Tax Act, 2017. Summary: The petitioner filed an appeal challenging a determination made u/s 73 of the said Act, but it was filed beyond the limitation period and accompanied by an application u/s 5 of the Limitation Act, 1963. The appellate authority rejected the application for condonation of delay and consequently the appeal. The petitioner contended that the appellate authority failed to exercise its jurisdiction by rejecting the application. The petitioner argued that there is no implied bar in the said Act for condoning the delay beyond the prescribed period. The petitioner relied on a judgment of a Division Bench of the Court to support the argument that Section 5 of the Limitation Act should apply. The State respondents argued that the appellate authority has no power to condone the delay beyond one month from the prescribed period of 90 days, as provided in Section 107(4) of the said Act. They contended that the said Act excludes the applicability of Section 5 of the Limitation Act, 1963, even though not expressly excluded. They cited a judgment from the Allahabad High Court to support their position. After considering the arguments and materials, the Court addressed the legal issue of whether the appellate authority had failed to exercise jurisdiction in rejecting the application for condonation of delay. The Court referred to previous judgments and concluded that the appellate authority is not deprived of its power to condone the delay beyond one month from the prescribed period. The Court found that the appellate authority erred in refusing to entertain the application under Section 5 of the Limitation Act. The Court set aside the order of the appellate authority and directed the appeal to be heard on its merits within a month. In conclusion, the writ petition was disposed of without any order as to costs, and the parties were directed to comply with necessary formalities to obtain a certified copy of the order.
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