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TMI Blog2025 (2) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner under section 107 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as the "CGST, Act 2017" for short) or the Bihar Goods and Services Tax Act, 2017 (hereinafter referred to as the BGST Act, 2017 for short) in Form GST APL-01 on 26.04.2024(Annexure P/3 Series), against the impugned Demand Order passed by respondent no 2, u/s 73(9) of the BGST/CGST Act, 2017 dated 27.12.2023, along with its summary order in Form DRC-07 bearing Reference No. ZD1012230343049, demanding a tax of Rs. 21,21,878/-, interest under Section 50 of Rs. 77,97,004, and penalty of Rs. 8,12,188/- for the tax period July 2017-March 2018 (Annexure P/2) has been rejected on the solitary ground of limitation. (ii) For further issuance of a writ or order or direction upon the respondent number 3 to admit and accept the appeal filed by the petitioner in form GST APL-01 on 26.04.2024 (Annexure P/3Series), against the impugned Demand order dated 27.12.2023 passed by respondent no 2, as the Respondent no 3 without the proper application of mind, misinterpreting the provisions of section 107 of the CGST/BGST Act 2017 to conclude that the time limit of Four Months (including the condonable per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of outstanding demand of tax amounting to Rs. 81,21,878/- along with interest under Section 50 amounting to Rs. 77,97,004 and penalty of Rs. 8,12,187/- respectively. The petitioner was called upon to submit its reply on or before 27.09.2023. A date of personal hearing was fixed on 10.10.2023. A copy of the show-cause notice has been enclosed as Annexure 'P/1' to the writ application. Learned counsel for the petitioner submits that on perusal of Annexure 'P/1' even as a date of hearing has been fixed but that would not be taken as an effective date. 4. It is submitted that respondent no. 2 issued two reminder notices calling upon the petitioner to submit his reply by 08.12.2023. In response to those notices, the petitioner filed his reply requesting additional time of fifteen days to reconcile purchase details due to unavailability of one of its suppliers. Thereafter, respondent no. 3 issued a reminder notice dated 22.10.2023 whereby the petitioner was called upon to submit his reply by next day. Those correspondences have not been brought on record as according to the petitioner, in the kind of issue involved in the present writ application, those are not very relevant to be go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014) 11 SCC 769. 8. Learned counsel has further relied on a recent judgment of the Hon'ble Supreme Court in the case of State of West Bengal represented through the Secretary and Ors. vs. Rajpath Contractors and Engineers Ltd. reported in 2024 7 SCR 1 : 2024 INSC 477. It is submitted that the impugned appellate order rejecting the appeal of the petitioner is bad in law and is liable to be set aside. Stand of the State 9. Mr. Vivek Prasad, learned GP-7 has opposed the writ application on the strength of the averments made in the counter affidavit. It is submitted that the appellate authority has rightly rejected the appeal as it was filed neither within three months of the assessment order nor within the extended window of further one month. 10. Learned counsel submits that a month is taken to be a thirty day period. In this connection, judgment of the Hon'ble Patna High Court in the case of M/s. Vaishnavi Enterprises versus the State of Bihar and others (CWJC No. 11172 of 2024) has been referred to wherein it has been held that in a case where the adjudication order had been communicated to the taxpayer on 14.05.2023, the appeal had to be filed on or before 12.08.2023. If a f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Territory Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person. (2) The Commissioner may, on his own motion, or upon request from the Commissioner of State tax or the Commissioner of Union territory tax, call for and examine the record of any proceedings in which an adjudicating authority has passed any decision or order under this Act or the State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act, for the purpose of satisfying himself as to the legality or propriety of the said decision or order and may, by order, direct any officer subordinate to him to apply to the Appellate Authority within six months from the date of communication of the said decision or order for the determination of such points arising out of the said decision or order as may be specified by the Commissioner in his order. (3) Where, in pursuance of an order under sub-section (2), the authorised officer makes an application to the Appellate Authority, such application shall be dealt with by the Appellate Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e grounds of appeal was not wilful or unreasonable. (11) The Appellate Authority shall, after making such further inquiry as may be necessary, pass such order, as it thinks just and proper, confirming, modifying or annulling the decision or order appealed against but shall not refer the case back to the Adjudicating Authority that passed the said decision or order: PROVIDED that an order enhancing any fee or penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund or input tax credit shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order: PROVIDED FURTHER that where the Appellate Authority is of the opinion that any tax has not been paid or short-paid or erroneously refunded, or where input tax credit has been wrongly availed or utilised, no order requiring the appellant to pay such tax or input tax credit shall be passed unless the appellant is given notice to show cause against the proposed order and the order is passed within the time limit specified under section 73 or section 74 Inserted by Finance (No.2) Act, 2024 (15 of 2024), dt. 16-8-2024,w. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court considered a question of law as under:- 2. ... whether the complaint filed ... under Section 138 of the Negotiable Instruments Act, 1881 is within or beyond time as it is contended that it is not filed within one month from the date on which the cause of action arose under clause (c) of the proviso to Section 138 of the Negotiable Instruments Act?" The same question was reframed in the following words:- "5. ... whether for calculating the period of one month which is prescribed under Section 142(b), the period has to be reckoned by excluding the date on which the cause of action arose?" 18. The judgment of the Hon'ble Supreme Court in the case of Saketh India Ltd. (supra) and in SIL Import, USA vs. Exim Aides Silk Exporters reported in (1999) 4 SCC 567 were at variance, therefore, the Hon'ble Supreme Court took up this matter for consideration. It was found that in the case of Saketh India Ltd. (supra), the Hon'ble Supreme Court had been pleased to place reliance upon Section 12(1) and (2) of the Limitation Act, 1963 and Section 9 of the General Clauses Act, 1897. Further, relying upon several decisions on this point, the Hon'ble Supreme Court observed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e principle is that when a period is delimited by statute or rule, which has both a beginning and an end and the word 'from' is used indicating the beginning, the opening day is to be excluded and if the last day is to be included the word 'to' is to be used. In order to exclude the first day of the period, the crucial thing to be noted is whether the period of limitation is delimited by a series of days or by any fixed period. This is intended to obviate the difficulties or inconvenience that may be caused to some parties. For instance, if a policy of insurance has to be good for one day from 1st January, it might be valid only for a few hours after its execution and the party or the beneficiary in the insurance policy would not get reasonable time to lay claim, unless 1st January is excluded from the period of computation." 20. In its ultimate analysis, the Hon'ble Supreme Court in the case of Econ Antri Ltd. observed in paragraph '41' and '42' as under:- 41. We may, at this stage, note that the learned counsel for the appellant relied on State of H.P.7 where, while considering the question of computation of three months' limitation period and further 30 days within which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2018 on which the appellate order was received by the petitioner is liable to be excluded in counting the prescribed period of limitation i.e. three months but can it be said that section 107(1) prescribed a period of limitation which would be ninety days treating one month equal to thirty days? 22. In the case of Bibi Salma Khatoon (supra), the Hon'ble Supreme Court was considering a challenge to the order of the appellate authority rejecting the appeal on the ground of limitation. Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the 'Act of 1961' reads as under:- "16. (3)(i) When any transfer of land is made after the commencement of this Act to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the documents of transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed: (emphasis supplied) Provided tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a series of days or any other period of time has to be included but in this case the word "of" is used so that section will not apply. A perusal of Section 11 shows that it is an aid for drafting a provision rather than for interpreting the provision of the Act. Be that as it may, since the Act does not expressly exclude Sections 4 to 14 of the Limitation Act, they apply to application under Section 16(3) of the Act. Therefore, the date from which the limitation commences has to be excluded in computing the period of limitation of three months. In Halsbury's Laws of England, 4th Edn., para 211 Ed:See in the first issue of 4th Edition in Vol. 45, para 1111 method of computation of month is given as follows: "211. Calendar month running from arbitrary date.-When the period prescribed is a calendar month running from any arbitrary date the period expires upon the day in the succeeding month corresponding to the date upon which the period starts, save that, if the period starts at the end of a calendar month which contains more days than the next succeeding month, the period expires at the end of that succeeding month. If a period of one calendar month includes the las ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of State of West Bengal vs. Rajpath Contractors and Engineers Ltd., (supra) the Hon'ble Supreme Court considered sub-section 3 of Section 34 of the Arbitration and Consolidation Act, 1996 and Section 4 of the Limitation Act. In the said case it was found that the award made by the Arbitral Tribunal on 30th of June, 2022 was served upon the appellant on the same day. The period of limitation for filing petition under sub-section 3 of Section 34 is three months from the date on which the party making the application had received the arbitral award or, if a request had been made under Section 33 of the Arbitratioin Act, from the date on which that request had been disposed off by the Arbitral Tribunal. The starting point of the period of limitation was 1st of July, 2022, therefore, it was held that the last day of the period of three months i.e. 30th September, 2022 would be the period of limitation. In the said case, admittedly the application under sub-section 3 of Section 34 was not filed by 30th of September, 2022. The Pooja Vacation started in the High Court from 1st of October, 2022 and continued till 30th of October, 2022 (both days inclusive). The petition under Section 34 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree months as a period of 90 days. 28. At first instance, we find that in the said case, the appeal was filed beyond one month from the date of expiry of the prescribed period of limitation. In the present case, however, on fact we find that the appeal was preferred within one month after the expiry of the prescribed period of limitation of three months. So far as the observations of the learned coordinate Bench that an appeal was to be filed on or before 12.08.2023 is concerned, that observation is in ignorance of the statute and the binding precedents of the superior court. 29. In the case of Kalika Kuer (supra), the Hon'ble Supreme Court has been pleased to consider as to in what circumstances a decision can be considered to have been rendered per incuriam. Paragraph '5' and '6' of the judgment in the case of Kalika Kuer (supra) are being reproduced hereunder for a ready reference:- 5. At this juncture we may examine as to in what circumstances a decision can be considered to have been rendered per incuriam. In Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98, para 578) we find it observed about per incuriam as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rities case [Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300. In Huddersfield Police Authority v. Watson, 1947 KB 842 : (1947) 2 All ER 193.] observed that where a case or statute had not been brought to the court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam. 6. In a decision of this Court reported in Govt. of A.P. v. B. Satyanarayana Rao [(2000) 4 SCC 262 : 2000 SCC (L&S) 486] it has been held as follows: (SCC pp. 264- 65, para 8) "The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue. ...We, therefore, find that the rule of per incuriam cannot be invoked in the present case. Moreover, a case cannot be referred to a larger Bench on mere asking of a party. A decision by two Judges has a binding effect on another coordinate Bench of two Judges, unless it is demonstrated that the said decision by any subsequent change in law or decision ceases t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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