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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 ..... aid person. It is also evident that under sub-section (4), the appellate authority has power to condone a delay of further period of one month if the appellate authority is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months. In a recent judgment, in case of State of West Bengal vs. Rajpath Contractors and Engineers Ltd., [2024 (7) TMI 457 - SUPREME COURT] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 period of One month) from the date of communication of order for filing an appeal, is equivalent to 120 days and not Four Calendar Months, without hearing the appeal on merits although it was filed within the time limit prescribed under section 107 of the CGST/BGST Act,2017, has rejected this appeal at the admission stage by passing the impugned Appeal Order dated 18.05.2023 and these actions of Respondent no 3 are in violation of the principles of Natural Justice and the provisions of the section 107 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 gone into. 5. The petitioner is aggrieved by and dissatisfied with a final demand order under Section 73(9) of the CGST-BGST Act, 2017 dated 27.12.2023 along with its summary order in Form DRC-07 demanding a tax of Rs. 81,21,878/- and interest etc. A copy of the demand notice dated 27.12.2023 and the summary of the order in Form GSTDRC-07 is Annexure 'P/2' to the writ application. 6. The petitioner preferred an appeal online availing his remedy of appeal under Section 107 of the CGST/BGST Act, 2017 in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 further window of one month provided under Section 107(4) is added to this, the appeal should have been filed latest by 11.09.2023. It is his submission that in a plethora of cases, the Hon'ble Patna High Court has taken similar view. Thus, learned counsel for the State has submitted that the claim of the petitioner that the four month window had not expired on 26.04.2024 which is the date on which the appeal had been filed in the instant matter is erroneous and baseless. 11. Responding to the submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 as if it were an appeal made against the decision or order of the adjudicating authority and such authorised 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. (5) Every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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.e.f 1-11-2024 vide SO 4253(E), dt. 27-9-2024 [or section 74A]. (12) The order of the Appellate Authority disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for such decision. (13) The Appellate Authority shall, where it is possible to do so, hear and decide every appeal within a period of one year from the date on which it is filed: Provided that where the issuance of order is stayed by an order of a court or Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed 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 Saketh India Ltd. (supra) that principle of excluding the day from which the period is to be reckoned is incorporated in Section 12(1) and (2) of the Limitation Act, 1963. The same principle is also incorporated in Section 9 of the General Clauses Act, 1897. The Hon'ble Supreme Court referred the relevant part of paragraph '5' of its judgment in the case of Haru Das Gupta vs. State of W.B. reported in (1972) 1 SCC 639 which we quote hereunder for a ready reference:- "5. … The rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 challenge to the award is to be filed, as provided in Section 34(3) and proviso thereto of the Arbitration Act, this Court held that having regard to Section 12(1) of the Limitation Act, 1963 and Section 9 of the General Clauses Act, 1897, day from which such period is to be reckoned is to be excluded for calculating limitation. It was pointed out by the counsel for the respondents that Section 43 of the Arbitration Act makes the Limitation Act, 1963 applicable to the Arb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that no such application shall be entertained by the Collector unless the purchase money together with a sum equal to ten per cent thereof is deposited in the prescribed manner within the said period. (ii) On such deposit being made the co-sharer or the raiyat shall be entitled to be put in possession of the land irrespective of the fact that the application under clause (i) is pending for decision: Provided that where the application is rejected, the cosharer or the raiyat, as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 last day of February there must be 29 or 28 days, according as the year is or is not a leap year." Thus computed, the application filed by the appellant on 30-4- 1988 is within limitation -- a period of three months of the date of the registered sale deed dated 30-1-1988. In this view of the matter, we are unable to sustain the order under challenge. We set aside the impugned order, restore the second appeal and remit the case to the High Court for disposal in accordance with law." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 of the Arbitration Act was filed on 31st October, 2022. The Hon'ble Supreme Court found that by virtue of Section 43 of the Arbitration Act, the Limitation Act shall apply to the arbitrators as it applies to the proceedings in the court. The Hon'ble Supreme Court considered Section 4 of the Limitation Act which reads as under:- "4. Expiry of prescribed period when court is closed.-- Where the prescribed period for any suit, appeal or application expires on a day when the court is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 follows: "A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow [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.]; or when it has acted in ignorance of a House of Lords decision, in which ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anarayana 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 to laying down a correct law." 30. From the judgments of the Hon'ble Supreme Court quoted hereinabove, we have no iota of doubt that in the present case, the three months period from the date of receipt of the order of the adjudicating authority expired on 27.03.2024. The appellant could have preferred an appeal within a further period of one month i.e. 27.04.2024 showing sufficient cause to the appellate authority to satisfy him that the appellant was prevented by sufficient caus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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