The Calcutta High Court directed the assessee to file application under Limitation Act, 1963 for delay in appeal as pre-deposit under Central Goods and Service Tax ( CGST )Act, 2017 was already made. The court held that an opportunity should be afforded to the petitioner to explain the delay, especially when the delay in filing the appeal is only marginal.
Jharna Das , the petitioner filed the petition questioning the purported rejection of the appeal filed under Section 107 of the GST Act, 2017 (“said Act”) vide form GST APL-02. Mr. Mozumder, advocate appearing for the petitioner submitted that being aggrieved by the order dated 6th September 2023 passed under Section 74(9) of the said Act, the petitioner had filed an appeal on 29th February 2024, as would appear from form GST APL-01.
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It was submitted that when the aforesaid appeal was filed along with 10 per cent pre-deposit of the disputed amount of tax, a system generated provisional acknowledgement form as proof of submission of the appeal was issued. Subsequently, when the acknowledgement for submission of appeal was issued in form GST APL – 02, the petitioner found that the appeal, itself, has been rejected on the ground of delay. It was submitted that before the petitioner could file an application under Section 5 of the Limitation Act, 1963 praying for condonation of delay in filing the appeal, the form GST APL-02 has been uploaded with the remark “Reason for rejection – Delay in submission of Appeal”.
The petitioner has not only a statutory right to prefer an appeal but also has a right to seek condonation of delay in preferring the appeal. No reasons apart from the reason noted above had been assigned by the appellate authority while rejecting the aforesaid appeal. The aforesaid order is bad in law, cannot be sustained and should be set aside.
A single bench of Justice Raja Basu Chowdhury viewed that the appellate authority ought to have afforded the petitioner an opportunity to file an application under Section 5 of the Limitation Act, 1963 for the purpose of seeking condonation of delay in filing the appeal.
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Since the petitioner has a statutory right and has already made the pre deposit as required under Section 107(6) of the said Act and the appeal has been rejected on the sole ground of delay, the court held that an opportunity should be afforded to the petitioner to explain the delay, especially when the delay in filing the appeal is only marginal.
While setting aside the order of rejection of the appeal dated 29th February 2024 as appearing in form GST APL- 02, the court granted liberty to the petitioner to file an application under Section 5 of the Limitation Act, 1963. If such an application praying for condonation of delay is filed within a period of two weeks, the appellate authority shall hear out and dispose of the said application in accordance with law.
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