In a recent case, the Calcutta High Court restored the matter for hearing as the Goods and Service tax ( GST ) appellate authority rejected appeal solely on ground that it does not have competence to condone delay beyond one month time prescribed.
Partha Pratim Dasgupta, the petitioner filed questioning the purported rejection of the appeal under Section 107 of the West Bengal Goods and Service Tax Act, 2017 (the Act) vide form GST-APL 02.
Mr. Mazumder, advocate representing the petitioner submitted that being aggrieved by the order dated 4th October 2023 passed under Section 73(9) of the GST Act, the petitioner had filed an appeal on 27th February, 2024 as would appear from Form GST APL 01.
It was submitted that the aforesaid appeal was filed along with 10% pre deposit of the disputed amount of tax. A system-generated provisional acknowledgement form as proof of submission of appeal was also issued. Since, the said appeal was filed beyond the time prescribed the same was accompanied by an application for condonation of delay. According to the petitioner, there was a delay of 55 days in filing the appeal.
Subsequently, the petitioner had received a notice as to why the appeal should not be rejected due to the delay as the same was filed beyond one month of the prescribed period as provided for under Section 107(1) read with Section 107(4) of the said Act.
It was argued that the Appellate Authority by ignoring the explanation given by the petitioner and by placing reliance on the proviso to sub-section (4) of Section 107 of the said Act had returned a clear finding that there is no power vested with the Appellate Authority to allow the appeal beyond one month after the time prescribed for filing the appeal. According to the petitioner, the petitioner has not only a statutory right to prefer an appeal but also has a right to seek condonation of delay in preferring an appeal. It would be apparent and clear from the above order that the Appellate Authority had failed to exercise jurisdiction vested in it while rejecting the appeal solely on the ground that it does not have the competence to condone the delay beyond one month of the time prescribed.
Mr. Siddiqui, advocate appeared on behalf of the respondents opposed the petition. It was submitted that since, the statute provides for the period for which delay can be condoned, there is no irregularity on the part of the Appellate Authority in refusing to condone the delay beyond the period of one month from the time prescribed.
The issue whether the Appellate Authority is competent to condone the delay beyond one month from the prescribed period for filing of an appeal.
The court found that the appeal had been dismissed solely on the ground that the same had been filed beyond one month of the time prescribed for filing the appeal. The appeal therefore, was obviously barred by limitation. However, at the same time, the aforesaid could not prevent the petitioner from maintaining an application for condonation of delay by invoking the provisions of Section 5 of the Limitation Act, 1963. A single bench of Justice Raja Basu Chowdhury restore the aforesaid appeal to its original file and number and direct the Appellate Authority to hear out the same in accordance with law on merit within a period of two months from the date of communication of this order
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