Appellate Authority has the discretion to allow an appeal presented after the expiry of the limitation period

[CA Bimal Jain]

The Hon’ble Calcutta High Court in the case of Arvind Gupta v. Assistant Commissioner of Revenue State Taxes [2024 (1) TMI 1096 - CALCUTTA HIGH COURT], held that the Appellate Authority has the discretion to allow an appeal to be presented within one month after expiry of the period of limitation stipulated from the date of communication of the order upon sufficient cause being shown as per Section 107 (4) of the Central Goods and Services Tax Act, 2017 (“the CGST Act”).

Facts:

Arvind Gupta (“the Petitioner”) filed an appeal before the Senior Joint Commissioner of Revenue, the Appellate Authority (“the Respondent”). The Petitioner had mentioned in the annexure to FORM GST APL-01 the period of delay and the reasons for filing the appeal petition beyond the statutory period of limitation:

1. The Petitioner was suffering from carcinoma maxilla.
2. During July 2023 he went to Apollo Hospital, Delhi for his treatment (Prescription enclosed).
3. He had to frequently visit Doctors in Delhi for his precarious health condition.

However, the Respondent passed an Order dated October 30, 2023 (“the Impugned Order”) and rejected the appeal on the ground of delay upon holding that there is no scope under the provisions of the West Bengal Goods and Services Tax Act, 2017 (“the WBGST Act”) read with the corresponding Chapters and Sections of the CGST Act for condoning the delay in submitting the appeal beyond four months.

Hence, aggrieved by the Impugned Order, the present writ petition was filed by the Petitioner.

Issue:

Whether the Appellate Authority has the discretion to allow an appeal to be presented within one month after the expiry of the limitation period?

Held:

The Hon’ble Calcutta High Court in [2024 (1) TMI 1096 - CALCUTTA HIGH COURT held as under:

• Relied on, the Hon’ble Division Bench in the matter of S.K. Chakraborty v. Union of India & Ors. (2023 (12) TMI 290 - CALCUTTA HIGH COURT) where the Bench held that the provisions of Section 5 of the Limitation Act, 1963 have not been expressly or impliedly excluded by Section 107 of the CGST Act under Section 29(2) of the CGST Act. Therefore, Section 5 of the Limitation Act, 1963 stands attracted. Hence, the Respondent has the discretion to allow an appeal to be presented within one month after the expiry of the period of limitation stipulated from the date of communication of the order upon sufficient cause being shown as per Section 107 (4) of the CGST Act.
• Observed that, it was well within the power of the Respondent to consider the prayer of the Petitioner for condonation of delay. The Impugned Order passed by the Respondent that there is no scope to condone the delay beyond four months suffers from infirmity.
• Noted that, the delay was evident from the annexure to FORM GST APL-01 and the Petitioner was prevented by sufficient cause for not preferring the appeal within the statutory period.
• Held that, the Respondent failed to exercise its jurisdiction. The delay in presenting the appeal before the Respondent was condoned. The Respondent was directed to consider the appeal on merit and decide the same in accordance with law upon giving an opportunity of hearing to the Petitioner.

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