Calcutta HC restores GST Appeal as Assessee Sufficiently explained [Read Order]

In a recent case, the Calcutta High Court  restored Goods and service Tax ( GST ) appeal as assessee sufficiently explained delay in filing appeal belatedly.The court restored 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 the order.

Partha Pratim Dasgupta, the  writ petitioner has been filed questioning the purported rejection of the appeal under Section 107 of the West Bengal Goods and Service Tax Act, 2017 ( the said Act ) vide form GST-APL 02 dated 28th March, 2024.

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Mr. Mazumder, advocate representing the petitioner submitted that being aggrieved by the order dated 4th October, 2023 passed under Section 73(9) of the said Act, the petitioner had filed an appeal on 27th February, 2024 as would appear from Form GST APL 01.

The writ petition 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.

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Subsequently, on 14th March, 2024 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.

Mr. Mazumder by drawing attention of the Court to the order impugned submitted 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.

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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 enters appearance on behalf of the respondents and opposes the petition. Hower 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.

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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.

In the case of S. K. Chakraborty & Sons Vs. Union of India , it was held that the Appellate Authority ought to have taken note of the explanation given in the application for condonation of delay under Section 5 of the Limitation Act, 1963.

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While setting aside the order of rejection of appeal dated 28th March, 2024 as appearing in Form GST APL 02 and taking note of the fact that no fruitful purpose will be served by remanding the aforesaid matter on the issue of condonation of delay to the Appellate Authority and also considering the explanation given by the petitioner, the single bench of Justice Raja Basu Chowdhury viewed that the petitioner has been able to sufficiently explain the delay in filing the appeal belatedly.

The court restored 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 the order. Since no affidavit-in-opposition has been called for, the allegation made in the writ petition are deemed not to have been admitted by the respondents.

To Read the full text of the Order CLICK HERE

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