CONDONATION OF DELAY IN FILING GST APPEAL RELYING ON LIMITATION ACT, 1963 - ACCEPTABLE?

[Mr. M. GOVINDARAJAN]

Appeal under GST law

Section 107 of the Central Goods and Services Tax Act, 2017/the State Goods and Services Tax Act, 2017 provides the procedure for filing appeal before the Appellate Authority by an aggrieved person.  Section 107(1) provides that any person aggrieved by any decision or order passed under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within 3 months from the date on which the said decision or order is communicated to such person.  Section 107(2) provides the procedure for filing appeal by the Department before the Appellate Authority within 6 months from the date on which the said decision or order is communicated to the Department.

If the appeal cannot be filed before the limitation period the appellant has to file an application for the condonation of delay in filing appeal.  Each day delay is to be explained in the application by the appellant.  The Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or six months, as the case may be, allow it to be presented within a further period of one month.  Beyond this period the Appellate Authority cannot condone the delay. 

During the COVID period the appeal or any petition under any law could not be filed before the respective Court/Appellate Authority/Tribunal etc. due to the pandemic prevailing.  During this period people cannot come out of their premises because of fear of Corona. 

The Supreme Court, vide their suo moto writ petition (Civil) No. 03/2020 held that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended with effect from 15th March 2020 till further order/s to be passed by this Court in present proceeding.   This order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities.  The said date was further extended by the Supreme Court to 14.03.2021 vide its order dated 08.03.2021 [IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION - 2021 (3) TMI 497 - SC ORDER ] and further extension was given by the Supreme Court up to 02.10.2021 vide its order dated 23.09.2021  The said limitation has been further extended to 28.02.2022 by the Supreme Court vide its order dated 10.01.2022 [IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION - 2022 (1) TMI 385 - SC ORDER].

As per the Supreme Court the period from 15.03.2020 to 10.01.2022 would be excluded in computation of limitation period.  From 01.03.2022 the limitation will start and the period of limitation is to be calculated taken into the days prior to 15.03.2020.  

In SRI SANJIB KUMAR PAL, PROP. OF M/S SANJIB KUMAR PAUL, VERSUS UNION OF INDIA, THE STATE OF TRIPURA, THE COMMISSIONER OF TAXES, TRIPURA, THE ADDITIONAL COMMISSIONER OF STATE TAX, (APPELLATE AUTHORITY) , TRIPURA, THE SUPERINTENDENT OF STATE TAX, TRIPURA - 2023 (8) TMI 397 - TRIPURA HIGH COURT , the order-in-original was passed by the Adjudicating Authority on 03.06.2020 for the period from April 2018 to March 2019.  The petitioner filed appeal against the Adjudicating Authority before the Appellate Authority on 24.03.2023. 

The petitioner had taken medical grounds for the delay apart from COVID-19 related grounds.  The Supreme Court has granted extension of limitation for all cases considering the COVID.  The petitioner relied on the Supreme Court order in this regard.  The Revenue submitted that the Supreme Court held that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed by any law which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.  On 02.05.2023 the Appellate Authority rejected the appeal as the appeal has been filed beyond the limitation period which cannot be condonable.

Against this order the petitioner filed the present writ petition before the High Court.  The High Court framed the only issue which emerges from perusal of the pleadings on record and upon hearing of the learned counsel for the parties, is whether the appellate authority committed an error or illegality in rejecting the appeal preferred under Section 107(1) of the Tripura State Goods and Services Tax Act, 2017 on the grounds of delay in preferring the appeal beyond the stipulated period prescribed under Section 107(4) of the Tripura State Goods and Services Tax Act, 2017. 

The High Court observed that the adjudication order for both the tax period is 3rd June, 2020. The appeals were preferred on 24.03.2023. The period of limitation in preferring any such appeal was extended by virtue of the order passed by the Apex Court in suo moto Writ Petition(C) No. 3 of 2020 on the first occasion on 15.03.2020 and thereafter, subsequently extended from time to time and lastly extended by order dated 10.01.2022 [IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION - 2022 (1) TMI 385 - SC ORDER].  Since the adjudication order was passed on 03.06.2020 during the Covid-19 period and the lockdown, any appeal arising there from under Section 107(1) of the Tripura State Goods and Services Tax Act, 2017 would have been filed by 28.05.2022 and not beyond it.  The appeals have been preferred on 24th March, 2023 after the delay of almost nine months thereafter.

The High Court further observed that the Appellate Authority vide impugned order dated 02.05.2023 in the respective appeals has also taken into consideration the Covid-19 related grounds and the extension of limitation period as per the order passed by the Apex Court in suo moto Writ Petition (C) No.3 of 2020. The order of the Apex Court in suo moto Writ Petition (C) No. 3 of 2020 extending period of limitation in all such matters including appeal.  The Department has taken the same view in their counter and also insisted that  apart from the appellate order no other challenge has been made by the petitioner.  The High Court observed that the challenge is confined to the legality and correctness of the appellate order dated 02.05.2023. 

The High Court held that-

• The limitation for filing appeals is prescribed under Section 107(4) of the Tripura State Goods and Services Tax Act, 2017 being a special statute, the same would be governed thereby. 
• Any plea for condonation of delay relying upon the Limitation Act, 1963 beyond the statutory period prescribed under Section 107(4) of the Act of 2017 cannot be accepted.

The High Court found no merit in the writ petition and as such it dismissed the writ petition filed by the petitioner.