An appeal can be filed beyond limitation period

[CA Bimal Jain]

The Hon’ble Calcutta High Court in the case of ACME PAINTS AND RESIN PRIVATE LIMITED VERSUS THE DEPUTY COMMISSIONER OF REVENUE, STATE TAX & ORS. - 2024 (7) TMI 741 - CALCUTTA HIGH COURT held that since the Assessee had deposited pre-deposit amount and there was no lack of bona fide on part of the Assessee, explanation given by the Assessee that delay in filing appeal was due to an oversight by accountant, though not entirely adequate, was accepted in interest of justice.

Facts:

M/s Acme Paints and Resin (P.) Ltd. (“the Petitioner”) aggrieved by the Order dated August 14, 2023, passed under Section 73(9) of the Central Goods and Service Tax Act, 2017 (“the CGST Act”), filed an appeal before the Appellate Authority. Simultaneously, with the filing of the appeal, the Petitioner had also made pre-deposit of Rs.1,76,141/- in terms of provisions of Section 107(6) of the CGST Act, as is required for maintaining the appeal. The said appeal was, however, filed beyond the time prescribed for filing of an appeal as provided for under Section 107(4) of the CGST Act because the Petitioner's accountant who deals with all tax matters overlooked the aforesaid order on the portal. 

The Petitioner could not appropriately explain the delay in filing the appeal. Consequently, the appeal was rejected by Appellate Authority vide Order dated March 15, 2024 (“the Impugned Order”).

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

Issue:

Whether an appeal can be filed beyond limitation period?

Held:

The Hon’ble Calcutta High Court in ACME PAINTS AND RESIN PRIVATE LIMITED VERSUS THE DEPUTY COMMISSIONER OF REVENUE, STATE TAX & ORS. - 2024 (7) TMI 741 - CALCUTTA HIGH COURTheld as under:

• Held that, the Petitioner had filed an appeal against the order dated August 14, 2023, under Section 73(9) of the CGST Act. Simultaneously, with the filing of the appeal, the Petitioner had also made a pre-deposit of Rs.1,76,141/-. It cannot be said that there is any lack of bona fide on the part of the Petitioner. The Petitioner claims that by reasons of oversight on the part of its accountant, the appeal could not be filed on time. The aforesaid explanation though, does not appear to be adequate, however, for the end of justice and taking into consideration of the fact that the Petitioner may have merits in the appeal and the Petitioner having deposited the pre-deposit amount. Hence, the Impugned Order was set aside, subject to the Petitioner's making payment of cost of Rs.25,000/- with the concerned GST authorities.

Our Comments:

The Hon’ble Calcutta High Court in the case of ARVIND GUPTA VERSUS ASSISTANT COMMISSIONER OF REVENUE STATE TAXES, COOCH BEHAR CHARGE & ORS. - 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 CGST Act.

Further, the Hon’ble Kerala High Court in PENUEL NEXUS PVT. LTD., REP. BY ITS MANAGING DIRECTOR SRI. M.O. JOSEPH VERSUS THE ADDITIONAL COMMISSIONER HEADQUARTERS (APPEALS) , STATE TAX OFFICER, TAXPAYER SERVICES CIRCLE, COCHIN - 2023 (6) TMI 941 - KERALA HIGH COURT held that the Additional Commissioner is right in rejecting the time-barred appeal as section 107 of the CGST Act has an inbuilt mechanism and has impliedly excluded the application of the Limitation Act, 1963. Further, relied on the judgment of the Hon’ble Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR - 2007 (12) TMI 11 - SUPREME COURT wherein the court held that since there is complete exclusion of section 5 of the Limitation Act,1963, therefore the Commissioner and the High Court were justified in holding that there was no power to condone the delay after the expiry of 30 days period.

(Author can be reached at [email protected])