The first appeal filed by the petitioner against the order dated 03.12.2018 was beyond the period for which delay may have been condoned, by about nine days.
Under section 107 of the U.P. Goods and Services Tax Act, 2017, the period of limitation to file a first appeal is three months and the period for which the delay may be condoned is thirty days from the expiry of normal period of limitation. The appellate authority dismissed the appeal as the same was time barred.
“Clearly, no application for condonation of delay may have been entertained by the appellate authority beyond a period of thirty days from the date of expiry of normal period of limitation (three months),” the Court said.
Justice Saumitra Dayal Singh observed that “in view of the decision of the Supreme Court cited by Sri B.K. Pandey, learned Standing Counsel in the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur reported in 2008 (3) SCC 70 paragraph no. 8 as also the Full Bench decision of this Court in Commissioner of Income Tax I; Commissioner of Income Tax Central; Janpad Thok Kendriya Upbhokta Sahkari Bhandar Limited Vs. Mohd Farooq; New Cawnpore Floor Mills Pvt Ltd; Commissioner of Income Tax reported in 2009 (317) ITR 305, the delay condonation application filed beyond the period of thirty days could not be condoned and it was clearly not maintainable by the appellate authority.
Consequently, there is no error in the order of the appellate authority dismissing the appeal as time barred.
The counsel for the petitioner conteded that if the remedy of appeal is held to be non-existant, still jurisdiction of the writ Court against the original order dated 03.12.2018 may not be ousted.
The department has accepted the notices on behalf of the respondents and sought for four weeks time to file counter affidavit.
After granting time to the department, the Court granted stay to the petitioner with a condition to deposit 50% of the disputed amount of tax and furnishing security for the balance amount of disputed tax in the shape of other than cash and bank guarantee within a period of one month.Subscribe Taxscan AdFree to view the Judgment