The Jammu & Kashmir and Ladakh High Court held that appellate authority cannot condone delay beyond four months under section 107 of Central Goods and Service Tax ( CGST ) Act, 2017. It was evident that this discretion conferred upon the appellate authority is restricted to condoning the delay only for a maximum period of one month.
The petitioners in all these petitions are dealers registered under Jammu & Kashmir Goods and Services Tax Act, 2017 [ the Act of 2017 ] under different registration numbers. They were assessed by the respective adjudicating authority under Section 73/74 of the Act of 2017 and certain demands were raised against them. Feeling dissatisfied and aggrieved by the orders passed by the adjudicating authorities, the petitioners preferred statutory appeals before the Appellate Authority under Section 107 of the Act of 2017. The appeals preferred by the petitioners-assessees were not entertained and rejected indicating the reason for rejection as “delay in submission of appeals”.
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Since the Government is yet to constitute 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.
It was urged 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.
The petitioners submitted that in the absence of specific exclusion of applicability of the Limitation Act, Section 29 of the Limitation Act would come into play and the Appellate Authority would be well within its power to condone the delay even beyond the period of four months by exercising its jurisdiction under Section 5 of the Limitation Act.
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It was 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 within the prescribed period of three months.
However, this discretion conferred upon the appellate authority is restricted to condoning the delay only for a maximum period of one month. Section 107 of the Act of 2017 is a complete Code in itself and by providing separate provision for condonation of delay, has, therefore, expressly excluded the applicability of Section 5 of the Limitation Act even by the aid of Section 29 thereof.
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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.
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.
The periods of limitation are procedural in nature. Therefore, the prohibition contained in Section 107(4) of the Act of 2017 to condone delay beyond one month cannot come in the way of the Constitutional Court exercising extraordinary jurisdiction to render substantial justice. Therefore, while a statutory prohibition is a strong consideration to be kept in mind, yet it does not bar the jurisdiction of the High Court to condone the delay if it is of the opinion that application of delay barring statute would result in gross injustice.
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The impugned order was passed by the adjudicating authority on 12th December, 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.9419078500 and Email Id. gst7480@gmail.com. However, the appeal was filed after a period of five months and twenty two days. The petitioner had not filed any separate application for condonation of delay.
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 the son of the petitioner was facing severe health problems 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.
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The order impugned in the appeal before the appellate authority was communicated to the petitioner on 12th December, 2023 and therefore, there was enough time for the petitioner to file appeal in time.
The reasons put forth by the petitioner for seeking condonation of delay are only ipsi dixit of the petitioner and do not bring the case of petitioner under exceptional circumstances warranting exercise of extraordinary jurisdiction by this Court to condone the delay.
The Court dismissed the Writ petition.
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