2024 (5) TMI 1400 - HC - GST

Refusal to condone the delay in maintaining the appeal under Section 107 of the WBGST Act, 2017 - appeal filed beyond one month from the prescribed period of limitation, as provided in Section 107 (4) of the said Act - failure on the part of appellate authority to exercise jurisdiction in rejecting the application for condonation of delay - challenge to determination u/s 74 of the said Act - 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. Thus, the appellate authority is not denude of its power to condone the delay beyond one month from the prescribed period of limitation as provided for in Section 107 (4) of the said Act. 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 - the order dated 19th January 2024 passed by the appellate authority in refusing to condone the delay under Section 107 of the said Act is set aside. The matter as regards consideration of the application under Section 5 of the Limitation Act, 1963 to the appellate authority, such issue needs to be considered by this Court. Having considered the application for condonation of delay, the explanation provided by the petitioner in the application under Section 5 of the Limitation act is satisfactory and delay has been sufficiently explained. Application disposed off.

Summary

Issues:
Challenge to refusal to condone delay in maintaining appeal under Section 107 of WBGST Act, 2017.

Analysis:
The petitioner challenged the refusal of the appellate authority to condone the delay in maintaining the appeal under Section 107 of the WBGST Act, 2017. The petitioner argued that the appellate authority erred in rejecting the application for condonation of delay, contending that the authority had the jurisdiction to entertain the appeal beyond the prescribed period. The petitioner relied on Section 107(4) of the Act, emphasizing that there is no implied bar on the appellate authority to condone the delay beyond one month of the prescribed period. It was argued that the appellate authority's refusal to condone the delay amounted to a failure to exercise its jurisdiction vested by law.

The petitioner cited a judgment by a Division Bench of the High Court, S.K. Chakraborty & Sons v. Union of India, which interpreted the provisions of the Act and held that Section 5 of the Limitation Act, 1963, should apply. The petitioner urged the Court to set aside the order refusing to condone the delay and direct the appellate authority to hear the appeal by condoning the delay. On the other hand, the State respondents argued that the Act is a self-contained code that implicitly excludes the applicability of Section 5 of the Limitation Act, 1963. They relied on a judgment from the Allahabad High Court to support their contention that the Act's specific limitation provisions preclude the application of general limitation provisions.

The Court considered the arguments presented by both parties and examined the relevant legal provisions and precedents. It noted that an identical issue had been considered by a Division Bench in a previous case, where it was concluded that there was no implied exclusion of Section 5 of the Limitation Act, 1963. The Court also referred to another Division Bench judgment which held that the statute does not prohibit the appellate authority from exercising jurisdiction beyond the prescribed period. Consequently, the Court found that the appellate authority had failed to exercise jurisdiction in rejecting the application for condonation of delay.

In light of the above analysis, the Court set aside the appellate authority's order and directed the condonation of delay in filing the appeal under Section 107 of the Act. The Court further instructed the appellate authority to hear and dispose of the appeal on its merits within a specified timeframe, emphasizing the need for timely resolution without unnecessary delays. The writ application was disposed of accordingly, with parties instructed to act based on the official copy of the Court's order downloaded from its website.