9911796707
TMI Blog2022 (9) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... donable powers of the Appellate Authority. The question whether this Appellate Authority can entertain an appeal under Section 100 of the CGST Act beyond the condonable period does not require much debate and has been answered in the negative by the Supreme Court in the case of SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [ 2007 (12) TMI 11 - SUPREME COURT] . The Supreme Court in the said case interpreted Section 35 of the Central Excise Act, 1944 which is similar to Section 100 of the CGST Act and examined the question whether the Commissioner (Appeals) has the power to condone the delay beyond the period of 30 days from the date of expiry of the period prescribed for filing the statutory appeal and also whether the High Court, in exercise of the power conferred under Article 226 of the Constitution of India, can condone the delay. It is evident that this Appellate Authority being a creature of the statute is empowered to condone a delay of only a period of 30 days after the expiry of the initial period for filing appeal. As far as the language of the proviso to Section 100 (2) of the CGST Act is concerned, the crucial words are not exceeding thirty days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h lectures on the subtleties of law in a recreational manner. 4. The Appellant took a GST registration in 2019-20 with GSTIN 20AFZPB2086B1ZB, since the revenue from training had exceeded Rs 20 lakhs and he has paid GST on the remittances received. The Appellant later cancelled the GST registration w.e.f 26-09-2019. In order to seek clarification as to whether the services rendered by him amounts to a taxable supply in case he crosses Rs 20 lakhs in the future, the Appellant approached the Authority for Advance Ruling (AAR) seeking a ruling on the following questions: a. Whether the income earned from conducting Guest Lectures, amounts to or results in a taxable supply of service? b. Whether the income earned from Research and Training Projects funded by Ministries of Government of India and State Government of Karnataka, amounts to results in a taxable supply of service to be taxed at Nil rate under Heading 9992? c. Whether the income earned from Research and Training Projects funded by Ministries of Government of India and State Government of Karnataka, amounts to or results in a taxable supply to be taxed at IGST 18% under Heading 9983? 5. The AAR vide its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in relation to his employment. 6.3. The Appellant also filed an application for condonation of delay of 65 days due to unavoidable personal reasons; that the impugned order was received on 19-02-2022 but the Appellant was unable to file the appeal within time; that in view of the Supreme Court's direction in Re: Cognizance for extension of limitation vide order dated January 10, 2022 wherein the Supreme Court has granted a limitation of 90 days from 28-02-2022 to file the appeal, the appeal filed by them on 26th May 2022 is within this extended period of limitation. In view of the above the Appellant prayed to quash the ruling pronounced by the AAR and pass orders as deemed fit. PERSONAL HEARING 7. The appellant was granted a virtual hearing on 19th July 2022. The hearing was conducted on the Webex platform following the guidelines issued by the CHIC vide Instruction F.No 390/Misc/3/2019-JC dated 21st August 2020. The Appellant was represented by Shri. Rohit R Kamath, Advocate and authorised representative. 7.1. The Advocate explained the facts of the case and the circumstances leading to the present appeal. It was submitted that the Appellant is a Profes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... private organizations and institutions is for the recreation of the employees of the organization since it helps to break the monotony of their daily work and makes them happier. In this connection, he relied on the feedback given by the Direct Tax Regional Training Institute that the officers would have been happier if the training session was for two days instead of the one day session. 7.3. In view of the above, he submitted that the Appellant is not liable to pay GST on any type of activity performed by him and the ruling given by the AAR that the income earned from guest lectures under the 2 nd and 3rd category of activities is taxable under GST is incorrect and liable to be set aside. On a specific question posed by the Bench as to who are the recipients of service when it comes to the 2nd and 3rd kinds of training activities provided by the Appellant, he submitted that in the 2nd category of training, the recipients were Government departments and organizations while in the 3rd category of trainings, the recipients were private institutions and organizations. 7.4. The Advocate also requested for condonation of delay in filing the appeal before the Authority. He submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce ruling order that is sought to be challenged. However, in terms of the proviso to Section 100(2) of the said Act, the Appellate Authority is empowered to allow the appeal to be presented within a further period not exceeding 30 days if it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the initial period of 30 days. In the Form ARA-02, the appellant has stated that the date of communication of the impugned advance ruling order was 19-02-2022. Accordingly, the time limit of 30 days for filing the appeal in this case, as per Section 100(2) of the CGST Act, will be 21-03-2022. Clearly the appeal, which has been filed on 26-05-2022, has not been filed within the prescribed time period of thirty days from the date of communication of the order. 10. The Appellant has sought to overcome the hurdle of delay in filing the appeal by claiming the benefit of the Supreme Court's Suo Motu Cognizance for Extension of Limitation in its final order dated 10-01-2022 in Suo Motu Writ (Civil) No 3/2020 whereby the Apex Court directed that the period between 15-03-2020 to 28-02-2022 is to be excluded for the purposes of limitation. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for extension of time limitation. Due to the onset of COVID-19 pandemic, the Supreme Court took suo moto cognizance of the challenge faced by the litigants in filing petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central and/or State). Accordingly, on 23 1 March, 2020, the Hon'ble Supreme Court invoked their plenary powers under Article 142 read with Article 141 of the Constitution of India and passed an order extending the limitation period for petitions, applications, suits, appeals and all other proceedings under the general or special law, both under central and/or state legislations, in all courts and tribunals across the country with effect from 15th March 2020 till further orders. The Apex Court vide subsequent orders dated 08-03-2021, 27-04-2021 and 27-09-2021 kept extending the period of limitation. By its order dated 10-01-2022, the Apex Court brought an end to the indefinite extension of the period of limitation and permitted the exclusion of period between 15-03-2020 and 28-02-2022 for purposes of computing limitation and made it clear that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r filing an appeal 21-03-2022 30-03-2022 Period between 20-02-2022 to 28-02-2022 is excluded as per SC order Further period of 30 days condonable by AAAR 20-04-2022 29-04-2022 Date of filing appeal 26-05-2022 26-05-2022 No of days delay after condonable period 36 27 The Appellant has contended that the limitation of 90 days from 01-03-2022 as granted by the Supreme Court in Para 5(III) of its final order dated 10-01-2022 is applicable to them and accordingly they have 90 days time to file the appeal and not 30 days as per the GST statute; that the appeal filed on 26-05-2022 is well within the limitation period of 90 days as granted by the Supreme Court. 14. We do not agree with this interpretation. Para 5(III) of the Supreme Court order dated 10-01-2022 does not apply to the instant case due to the following reasons. The directions at Para 5(III) of the Supreme Court's order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal in this case, has been filed on 26.05.2022 which is 36 days after the expiry of the grace period in the case of Situation 1 and 27 days after the expiry of the grace period in the case of Situation 2. In both situations the delay is beyond the condonable powers of the Appellate Authority. The question whether this Appellate Authority can entertain an appeal under Section 100 of the CGST Act beyond the condonable period does not require much debate and has been answered in the negative by the Supreme Court in the case of Singh Enterprises vs CCE reported in (2008) 3 SCC 70. The Supreme Court in the said case interpreted Section 35 of the Central Excise Act, 1944 which is similar to Section 100 of the CGST Act and examined the question whether the Commissioner (Appeals) has the power to condone the delay beyond the period of 30 days from the date of expiry of the period prescribed for filing the statutory appeal and also whether the High Court, in exercise of the power conferred under Article 226 of the Constitution of India, can condone the delay. The Hon'ble Supreme Court in Para 8 of its order held that the proviso to sub-section (1) of Section 35 makes the positi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be extended by invoking the provisions of Section 5 of the Act. 18. In view of the above settled legal position, it is evident that this Appellate Authority being a creature of the statute is empowered to condone a delay of only a period of 30 days after the expiry of the initial period for filing appeal. As far as the language of the proviso to Section 100 (2) of the CGST Act is concerned, the crucial words are not exceeding thirty days . To hold that this Appellate Authority could entertain this appeal beyond the extended period under the proviso would render the phrase not exceeding thirty days wholly otiose. No principle of interpretation would justify such a result. Therefore, we hold that we are not empowered to condone the delay of 27 days beyond the condonable period, in filing this appeal. 19. Since the appeal cannot be allowed to be presented on account of time limitation, the question of discussing the merits of the issue in appeal does not arise. 20. In view of the above we pass the following order ORDER We dismiss the appeal filed by the appellant Sri. Sairam Gopalkrishna Bhat, No 401, Dwarkemayee Building, 16th Cross, Jnanabharathi 2nd Bloc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
