The Calcutta High Court recently held that the appellate authority empowered to condone delay beyond one month from prescribed period of limitation under Section 107 (4) of the West Bengal Goods and Services Tax Act, 2017 ( WBGST Act ).
The writ petition has been filed, inter alia, challenging the refusal on the part of the appellate authority to condone the delay in maintaining the appeal under Section 107 of the West Bengal Goods and Services Tax Act, 2017.
It is the petitioner’s case that being aggrieved with the determination under Section 73 of the WBGST Act, the petitioner had filed an appeal under Section 107 of the WBGST Act. Since, the appeal was filed beyond the period of limitation the same was accompanied by an application under Section 5 of the Limitation Act, 1963. The appellate authority, however, appears to have rejected the said application for condoning the delay by its order and had consequentially disposed of the appeal.
The advocate appearing for the petitioner submitted that since the appellate authority was competent to entertain the appeal beyond one month of the time prescribed, the petitioner had filed an application for condonation of delay on the ground stated therein and that the appellate authority had, however, by overlooking the fact that the petitioner had made out sufficient grounds for condonation of delay by, inter alia, observing that appeal had been filed beyond the maximum period of four months from the date of communication of the order had rejected the said application for condonation of delay and consequentially disposed of the appeal.
The advocate appearing for the State respondents, on the other hand submitted that there is no power available to the appellate authority to condone the delay beyond the period of one month from the prescribed period of 90 days, provided for in preferring the appeal. According to the counsel, the WBGST Act is a self-contained code and excludes the applicability of the provisions Section 5 of the Limitation Act 1963.
A Single Bench of Justice Raja Basu Chowdhury relied on the judgment in Superintending Engineer/Dehar Power House Circle Bhakra Beas Management Board (PW) Slapper and another versus Excise and Taxation Officer Sunder Nagar/Assessing Authority , wherein it was observed that “In absence of non obstante clause rendering Section 29 (2) of the Limitation Act 1963, non applicable and in absence of specific exclusion of Section 5 of the Limitation Act, 1963, it would be improper to read implied exclusion thereof.”
“Having regard to the above, in my view the appellate authority is not denude of its power to condone the delay beyond one month from the prescribed period of limitation as provided for in Section 107 (4) of the WBGST Act” the Court noted.
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