2024 (8) TMI 1259 - HC - GST

Delay in filing appeal - appeal rejected on the ground that there was no scope to admit the appeal beyond a month from the prescribed period - HELD THAT - In this case, it is noticed that after the order under Section 73 of the said Act was passed on 26th July, 2023, a sum of Rs. 2,37,894/- was recovered from the petitioner. The petitioner, in addition to the said recovery had made payment of Rs. 31,380/- towards pre-deposit. The appellate authority was made aware with regard to the reasons which prevented the petitioner from preferring an appeal. Taking note of the stand taken by the petitioner it cannot be said that there was lack of bona fide on the part of the petitioner in preferring the appeal. It is well-established that the one does not stand to gain by filing a belated appeal especially when the respondents by then recovered a sum of Rs. 2,37,894/- from the petitioner. The appellate authority, however, despite acknowledging the medical conditions of the petitioner s representative and despite ascertaining that the petitioner was otherwise prevented from filing the appeal within the time prescribed had purported to dismiss the said appeal, inter alia, on the ground that there was no scope for admission of the appeal filed beyond four months from the date of the order appealed against. The aforesaid order appears to be contrary to the directive issued by the Hon ble Division Bench of this Court in the case of S.K. CHAKRABORTY SONS VERSUS UNION OF INDIA ORS. 2023 (12) TMI 290 - CALCUTTA HIGH COURT which, inter alia, provide that the provisions of Section 5 of the Limitation Act, 1963 stands attracted for condoning the delay beyond one month from the prescribed period. The order passed on 29th April, 2024 by the appellate authority cannot be sustained and the same is set aside - Petition disposed off.

Summary

Issues:
Appeal against order under Section 73 of CGST/WBGST Act, 2017 - Delay in filing appeal due to medical condition - Dismissal of appeal by appellate authority - Application of Section 5 of the Limitation Act, 1963.

Analysis:
The petitioner filed an appeal against an order passed under Section 73 of the CGST/WBGST Act, 2017 after a recovery of Rs. 2,37,894 had been made. The petitioner also deposited Rs. 31,380 as a pre-deposit. The delay in filing the appeal was attributed to the medical condition of the authorized representative of the petitioner suffering from cirrhosis of the liver. The appellate authority rejected the appeal citing lack of scope for admission beyond a month from the prescribed period. However, the Court noted that the petitioner had genuine reasons for the delay and did not stand to gain by filing a belated appeal after the recovery had been made. The Court found the appellate authority's decision contrary to the directive in a previous case regarding the application of Section 5 of the Limitation Act, 1963 for condoning delays beyond one month from the prescribed period.

The Court set aside the order of the appellate authority dated April 29, 2024, and held that the petitioner sufficiently explained the delay in preferring the appeal. Condoning the delay, the Court directed the appellate authority to hear and dispose of the appeal on merits expeditiously, preferably within eight weeks from the date of communication of the order. The writ petition was disposed of with no order as to costs. The Court also directed the provision of an urgent certified copy of the order to the parties upon compliance with formalities.