2024 (7) TMI 667 - HC - GST

Maintainability of petition - availability of alternative remedy - non-constitution of GST Tribunal - Challenge to order passed by the Appellate Authority u/s 107 of the West Bengal GST/CGST Act, 2017 - Power to condone the delay - HELD THAT - In this case it has been noticed that there is a statutory right of the Registered Tax Payer (RTP) to prefer an appeal from an order of adjudication passed under Section 73(9) of the said Act - Admittedly, the petitioner had exercised its statutory right and had filed the appeal along with the pre-deposit as is required for maintaining the appeal. Factum of payment of such pre-deposit would corroborate from the Form GST APL-01. It appears that in filing the appeal there was some delay. The powers of the Appellate Authority to condone the delay beyond one month from the time prescribed had duly been considered in the case of S.K. CHAKRABORTY SONS VERSUS UNION OF INDIA ORS. 2023 (12) TMI 290 - CALCUTTA HIGH COURT . It has been held 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. As such, 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 acted in a mechanical manner in purporting to reject the appeal on the ground that the same was filed beyond the period of limitation prescribed for filing of an appeal, by glossing over the explanation for the delay. Since, the explanation offered by the petitioner is found to be sufficient, while condoning the delay, the matter remanded back to the Appellate Authority for deciding the matter on merits by giving an opportunity of hearing to the petitioner of being heard. Petition disposed off by way of remand.

Summary

Issues:
Challenge to order under Section 107 of West Bengal GST/CGST Act, 2017; Delay in filing appeal under Section 107; Condonation of delay; Mechanical disposal of appeal by Appellate Authority; Power of Appellate Authority to condone delay; Setting aside order dated 24th November, 2023; Remanding the matter back to Appellate Authority for hearing.

Analysis:

The petitioner filed a writ petition challenging the order passed by the Appellate Authority under Section 107 of the West Bengal GST/CGST Act, 2017. The proceedings were initiated due to discrepancies between GSTR 3B and GSTR 2A for the financial year 2017-18. The proper officer determined the liability of the petitioner despite the petitioner's explanations. An appeal was filed under Section 107 along with a pre-deposit, but it was filed belatedly, leading to an application for condonation of delay supported by a medical certificate. The Appellate Authority rejected the appeal due to a delay of six days beyond the prescribed time under Section 107(4) of the Act.

The petitioner contended that the Appellate Authority mechanically disposed of the appeal without considering the condonation of delay application. The court noted the statutory right of the Registered Tax Payer to prefer an appeal and observed that the delay in filing the appeal was marginal. The petitioner had provided an explanation for the delay along with supporting documents. Referring to a previous case, the court emphasized that the Appellate Authority retains the power to condone delays beyond the prescribed period under Section 107(4) of the Act.

The court found the Appellate Authority's rejection of the appeal solely based on the delay to be improper. Consequently, the court set aside the order dated 24th November, 2023. Acknowledging the sufficiency of the explanation for the delay, the court remanded the matter back to the Appellate Authority for a hearing on merits, directing completion within eight weeks. The writ petition was disposed of with no costs awarded, and parties were granted access to a certified copy of the order upon request.