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TMI Blog2024 (8) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... HOWDHURY [ 2018 (2) TMI 487 - SUPREME COURT ], Hon ble the Supreme Court again considered the same question in the light of Section 421(3) of the Companies Act, 2013, which prescribed a period of forty five days for filing an appeal from the orders of the Tribunal. The proviso appended to Subsection (3), however, conferred discretion on the appellate tribunal to entertain the appeal even after expiry of said period of forty five days provided it was satisfied that the appellant was prevented by sufficient cause for filing the appeal within that period. However, the discretion to condone the delay was restricted to a period not exceeding forty five days after the expiry of the prescribed period of limitation. The question raised in these appeals is answered in favour of the respondents and against the appellant(s) and it is held that the appellate authority cannot entertain an appeal under Section 107 of the Act of 2017 against a decision or order of the adjudicating authority, if it is filed beyond the period of four months from the date such decision or order is communicated to the person aggrieved. The periods of limitation are procedural in nature. Therefore, the prohibition con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitute Appellate Tribunal, as such, the petitioners, feeling aggrieved by rejection of their appeals, are before us invoking extraordinary writ jurisdiction vested in this Court under Article 226 of the Constitution of India. 3. Learned Advocate General appearing for the respondents raises a preliminary objection to the maintainability of these petitions. He would argue that under Section 107 of the Act of 2017 any decision or order passed by the adjudicating authority may be appealed before the Appellate Authority within three months from the date of such decision or order and in terms of Subsection (4) of Section 107, the Appellate Authority is conferred discretion to condone delay of one month from the date of expiry of limitation period of three months prescribed under Subsection (1) of Section 107. He would, therefore, urge that the appeals preferred by the petitioners before the Appellate Authority after a gap of more than four months from the date of passing of the orders by the adjudicating authorities were patently time barred and the Appellate Authority committed no illegality or irregularity in rejecting such appeals. 4. Meeting the argument of the learned Advocate Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Authority, such application shall be dealt with by the Appellate Authority as if it were an appeal made against the decision or order of the adjudicating authority and such authorized officer were an appellant and the provisions of this Act relating to appeals shall apply to such application. (4) 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. 7. From a reading of Subsection (1) set out hereinabove, it is abundantly clear that any person, who is aggrieved by any decision or order passed under the Act of 2017 or the State GST Act by an adjudicating authority is entitled to file an appeal before the prescribed appellate authority within a period of three months from the date on which said decision or order is communicated to such person. Subsection (4) of Section 107, however, confers discretion on the appellate authority to condone the delay in filing appeal, if it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 5, shall apply only insofar as and to the extent to which they are not expressly excluded by such special or local law. 10. Indisputably, the Act of 2017 is a special legislation and prescribes period for filing appeal under Subsection (1) of Section 107, which is different from the period prescribed in the Limitation Act and, therefore, Sections 4 to 24 would prima facie be applicable. However, Sections 107(1) and 107(4) by prescribing a period of limitation and also the period upto which the appellate authority can condone the delay in filing the appeal, shall be deemed to have completely and expressly excluded the applicability of Section 5 of the Limitation Act. The appellate authority was, thus, perfectly justified in rejecting the appeals having been preferred beyond the period of four months from the date of communication of the order of assessment passed by the adjudicating authority. 11. In the view we have taken, we are supported by a judgment of the Hon ble Supreme Court in the case of Singh Enterprise v. Commissioner of Central Excise, Jamshedpur, (2008) 3 SCC 70. In the aforesaid appeal Hon ble the Supreme Court was considering similar provisions contained in Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period. 12. Before we proceed further, we deem it appropriate to set out Section 35 of the Central Excise Act, 1944 for comparison purpose, which reads thus: 35. APPEALS TO COMMISSIONER (APPEALS). (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) [hereafter in this Chapter referred to as the Commissioner (Appeals)] within sixty days from the date of the communication to him of such decision or order : Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. 13. Similar view was taken by the Hon ble Supreme Court in the case of Commissioner of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Act. The nature of the remedy provided therein are such that the legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court. 36. The scheme of the Central Excise Act, 1944 support the conclusion that the time limit prescribed under Section 35H(1) to make a reference to High Court is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by the judgment of this Court in Chhattisgarh SEB v. Central Electricity Regulatory Commission, 2010 (5) SCC 23. The language of Section 125 of the Electricity Act, 2003, which is similar to the language contained in Section 421 (3) of the Companies Act, 2013, came up for consideration in the aforesaid decision. The issue that arose before this Court was whether Section 5 of the Limitation Act can be invoked for allowing the aggrieved person to file an appeal beyond 60 days plus the further grace period of 60 days. This Court held that Section 5 cannot apply to Section 125 of the Electricity Act in the following terms: 25. Section 125 lays down that any person aggrieved by any decision or order of the Tribunal can file an appeal to this Court within 60 days from the date of communication of the decision or order of the Tribunal. Proviso to Section 125 empowers this Court to entertain an appeal filed within a further period of 60 days if it is satisfied that there was sufficient cause for not filing appeal within the initial period of 60 days. This shows that the period of limitation prescribed for filing appeals under Sections 111(2) and 125 is substantially different from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of S.K.Chakrobarty v. Union of India rendered by the Calcutta High Court, which in view of the settled legal position adumbrated above, does not lay down correct position of law. 17. In view of the aforesaid, the question raised in these appeals is answered in favour of the respondents and against the appellant(s) and it is held that the appellate authority cannot entertain an appeal under Section 107 of the Act of 2017 against a decision or order of the adjudicating authority, if it is filed beyond the period of four months from the date such decision or order is communicated to the person aggrieved. 18. Subsection (1) of Section 107 prescribes period of limitation for presenting such appeal(s) as three months. However, Subsection (4) of Section 107 gives discretion to the appellate authority to condone the delay beyond the period of limitation prescribed under Subsection (1) provided it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period of three months. However, such discretion is confined to condoning the delay to the maximum period of thirty days and not beyond that. By making such provision in Subsection (4), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. Each case is, thus, required to be evaluated on its specific facts and circumstances. 22. So far as interpretation of taxation/fiscal statute is concerned, it is trite law that charging provisions would require literal or strict construction whereas machinery provision and the provisions for appeals and limitation period may not require strict or literal constructions. The principle always lean in favour of advancing the cause of justice where a clear case is made out for so doing, since justice and reasoning is at the heart of all legislation. While we do not dispute that where a statute prohibits condonation of delay beyond a particular period or does not provide for any such condonation, this Court in the exercise of jurisdiction under Article 226 of the Constitution should not, on the drop of hat, exercise its jurisdiction under Article 226 of the Constitution of India and do something which is specifically prohibited by a statute or legislative enactment. Doing so without there being exceptional circumstances would render such statute or legislative enactment otiose. However, as stated above, the power vested in the High Court under Article 226 of the Constitution of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment order passed by the adjudicating authority under the Act of 2017 cannot be kept open ended for indefinite period and the timelines prescribed in the statute are required to be respected and complied with. WP(C) No.1259/2024 27. In the instant case, the order under Section 74 of the Act of 2017 was passed by the adjudicating authority concerned on 2nd September, 2023 and the same was communicated to the petitioner on the same day through GST Portal (Email/SMS). The order was communicated to the petitioner on his phone No.7006342469 and Email Id. [email protected]. The appeal was filed by the petitioner before the appellate authority on 3rd April, 2024 i.e. after seven months and one day. There was, thus, a delay of three months and one day beyond the period of thirty days prescribed under Section 107(4) of the Act of 2017. In this case also, the petitioner had not moved any separate application seeking condonation of delay and rightly so, as the petitioner was aware that the condonation of delay beyond thirty days was not permissible in view of the express provisions of Subsection (4) of Section 107 of the Act of 2017. 28. In the memo of appeal the petitioner has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under treatment outside the State. That being so, the casual remarks under paragraph 15(b) of the memo of appeal filed before the appellate authority cannot be a reason for seeking condonation of delay beyond the period of thirty days, as is prescribed under Subsection (4) of Section 107 of the Act of 2017. We, therefore, do not find it also a case of any exceptional nature, which would warrant exercise of extraordinary jurisdiction vested in this Court under Article 226 of the Constitution of India to condone the delay despite there being a statutory prohibition contained in Section 107(4) of the Act of 2017 for such condonation. WP(C) No.1086/2024 34. In the instant case, the order impugned in the appeal before the appellate authority was passed on 31st December, 2023 under Section 73 of the Act of 2017. The order was communicated to the petitioner on the same day through GST Portal (mail/SMS). The order was communicated to the petitioner on his phone No.9622653800 and Email Id. [email protected]. 35. The appeal was preferred by the petitioner before the appellate authority after four months and eleven days of the communication of the order. There was, thus, a delay of eleven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate authority could not have condoned the delay. We also do not find it a case of exceptional nature to exercise extraordinary jurisdiction vested in this Court under Article 226 of the Constitution of India to condone the delay despite there being a statutory prohibition. WP(C) No.1099/2024 40. In the instant case, the order impugned in the appeal before the appellate authority was passed on 5th December, 2023 under Section 74 of the Act of 2017. The order was communicated to the petitioner on the same day through GST Portal (mail/SMS). The order was communicated to the petitioner on his phone No.6006363212 and Email Id. [email protected]. 41. The appeal was preferred by the petitioner before the appellate authority after five months and nine days of the communication of the order. There was, thus, a delay of one month and nine days after the expiry of the period of thirty days envisaged under Section 107(4) of the Act of 2017. Neither specific request for condonation of delay was made nor any reasons given in the memo of appeal for belated filing of appeal, that, too, beyond the period of four months. 42. In view of the above, we also do not find it a case of exceptional natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.2023 does not show any extraordinary circumstance, which prevented him from filing appeal in time. The reasons for delayed filing of appeal given by the petitioner are merely ipsi dixit of the petitioner and do not bring his case within exceptional circumstances warranting exercise of extraordinary jurisdiction by this Court to condone the delay WP(C) No. 1372/2024 49. In the instant case the order impugned in the appeal filed before the appellate authority was passed on 1st January, 2024 and the same was communicated to the petitioner on the same day through GST Portal (Email/SMS). The appeal before the appellate authority was filed on 01.06.2024. There is thus, delay of about two months after the expiry of four months as envisaged in terms of Section 107 of the Act of 2017. A separate application was filed by the petitioner before the appellant authority for seeking condonation of delay on the ground that the appeal could not be filed on time and there was delay of two months, which occurred due to communication gap between the petitioner and his consultant, who was entrusted the job of filing returns on behalf of the petitioner and the petitioner came to know only when his ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appeal stated by the petitioner in the memo of appeal. There is delay of two months and eight days even beyond the period of four months as envisaged under Section 107 of the Act of 2017. 55. We do not find it a case warranting exercise of extraordinary writ jurisdiction by this Court to condone the delay despite there being statutory prohibition to do so. WP(C) No.1210/2024 56. In the instant case, the order impugned in the appeal preferred before the appellate authority by the petitioner was passed on 12th December, 2023 and the same was communicated to the petitioner on the same day through GST Portal (Email/SMS) on his Phone No.7006001932 and Email Id. [email protected] 57. The appeal was filed on 01.05.2024 i.e. after four months and twenty days. No specific application for condonation of delay was made. However, in the memo of appeal the reason given for delayed filing of the appeal is that son of the petitioner was facing severe health problem for the last several months and that he was being treated in Delhi. However, the petitioner has not given any date during which his son was being treated in Delhi hospital. 58. The order impugned in the appeal before the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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