M/S Venkateswara Rao Kesanakurti vs. The State Of Andhra Pradesh

The Additional Commissioner (ST), Appellate Authority, Vijayawada, NTR District, Andhra Pradesh.

The Assistant Commissioner (ST), Jagannaickpur Circle, Kakinada District. ... Respondents Between: # M/s. Sai Balaji Infrastructures, Having its office at Andhra Pradesh - 523201 Rep. by its Authorised Signatory Vahid Syed , R/o. 9/530/1, Opp: Old IOC Petrol Bunk, NTR Road, Addanki, Prakasam District. ... Petitioner AND W.P.Nos.13662, 13712 & 14803/2024 $ 1. The State of Andhra Pradesh rep. by its Principal Secretary, State Tax Department, Secretariat Buildings, Velagapudi, Amaravati.

The Additional Commissioner (ST), Appellate Authority, Vijayawada NTR District, Andhra Pradesh.

The Assistant Commissioner (ST), Jagannaickpur Circle, Kakinada District. ... Respondents Date of Judgment pronounced on : 23.08.2024 HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO And HON’BLE SRI JUSTICE HARINATH.N

The Additional Commissioner (ST), Appellate Authority, Vijayawada NTR District, Andhra Pradesh.

The Assistant Commissioner (ST), Jagannaickpur Circle, Kakinada District. ... Respondents ! Counsel for the petitioners: Smt. Jyothi Ratna Anumolu ^Counsel for Respondents : Sri T.C.D. Sekhar, G.P. for Commercial Tax <GIST >HEAD NOTE: ? Cases referred:

The orders impugned in the present batch of writ petitions are as follows: W.P.No. Proceedings No. Date of the order Special Appeal No. GST/KKD/721/ 2023-24 12.02.2024 W.P.No.13712/2024 Special Appeal No. GST/KKD/722/ 2023-24 12.02.2024 CTD Order No.DIN3731052440836 31.05.2024

Section 107 of the APGST Act reads as follows:

(1) Any person aggrieved by any decision or order passed under this Act or the Central Goods and Services Tax Act, 2017 by an adjudicating authority may appeal to W.P.Nos.13662, 13712 & 14803/2024 such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person. (2) The Chief Commissioner may, on his own motion, or upon request from the Commissioner of Central tax, call for and examine the record of any proceeding in which adjudicating authority has passed any decision or order under this Act or the Central Goods and Services Tax Act, 2017 for the purpose of satisfying himself as to the legality or propriety of the said decision or order and may, by order, direct any officer subordinate to him to apply to the Appellate Authority within six months from the date of communication of the said decision or order for the determination of such points arising out of the said decision or order as may be specified by the Chief Commissioner in his order. an (3) Where, in pursuance of an order under sub-section (2), the authorized officer makes an application to the Appellate Authority, such application shall be dealt with by the Appellate Authority as if it were an appeal made against the decision or order of the adjudicating authority and such authorized officer were an appellant and the provisions of this Act relating to appeals shall apply to such application. (4) The Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appealwithin the aforesaidperiod of three months or six months, as the case may be, allow it to be presented within a further period of one month.

The learned Government Pleader for Commercial Taxes, on the other hand, relying upon the judgments in Assistant Commissioner vs. (2001) 8 see 470 ^(1976)4 see 464 ^2020) 17 see 692 '’(2008)3 see 70 ^(2009) 5 see 791 ‘ (2023) 118 GSTR 388 (Kerala = ILR 2023 (3) Kerala 480 W.P.Nos.13662, 13712 & 14803/2024 Glaxo Smith and a judgment of the Hon’ble High Court of Delhi dated 20.03.2023 in The Commissioner of Income Tax (International Taxationj-I, New Delhi vs. Brandix Mauritius Holdings Ltd./ in ITA No.163 of 2023, would contend that there is an implied exclusion of Section 5 of the Limitation Act and as such the appellate authority, under Section 107 (4) of the COST Act, does not have power to condone the delay of filing of appeals beyond the additional period of one month. Consideration of the Court:

Section 29(2) of the Limitation Act, 1963 reads as follows: 29 (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.

Any appeal filed under Section 107(1) or 107(2) of the APGST Act would have to be filed either within three months or six ^ Neutral Citation No.2023:DHC?2502-DB W.P.Nos.13662, 13712 & 14803/2024 months respectively and the appellate authority would be entitled to condone a further delay of one month beyond the period specified above. The applicability of the provisions of Section 29(2) of the Limitation Act, in relation to period of limitation, set out in special or local laws, has been considered by a long line of decisions by the Hon’ble Supreme Court.

The first judgment, of import, by the Hon’ble Supreme Court is Vidyacharan Shukla vs. Khubchand Baghel and Ors.,®. In this case, the election of the appellant, to the Lok Sabha in the third general elections, was challenged before the Election Tribunal. Upon the election petition being dismissed, the respondents had filed an appeal to the High Court and the same came to be allowed. Aggrieved by the said decision of the Hon’ble High Court of Madhya Pradesh at Jabalpur, the appellant had approached the Hon’ble Supreme Court. The only question, raised before the Hon’ble Supreme Court, was the question of limitation. It was the case of the appellant that the time for filing an appeal was 30 days under Section 116-A(3) of the Representation of Peoples Act, 1951 whereas the appeal was filed beyond that period. It was admitted on both sides, that certain time was taken for obtaining the certified copy of the order of dismissal, and if this time was excluded, the appeal would be within 30 days. The respondents contended that Section 12 of the 11. (1963) see Online Se 122 = AIR 1964 Se 1099 W.P.Nos.13662, 13712 & 14803/2024 Limitation Act required that the period taken for obtaining a certified copy would have to be excluded. This raised the question of whether Section 12 of the Limitation Act could be pressed into service by the respondents. A Constitution Bench of the Hon’ble Supreme Court delivered a judgment wherein four learned Judges delivered a majority judgment while Justice K. Subba Rao, delivered a concurrent judgment. However, there was a difference of opinion about the interpretation of Section 29(2) of the Limitation Act. At that point of time, Section 29 (2) of the Limitation Act read as follows;

Section 29(2) Where any special or local law prescribes for any suit appeal or application a period of limitation different from the period prescribed there for by the First Schedule the provisions of Section 3 shall apply, as if such period were prescribed there for in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law— (a) the provisions contained in Section 4, Sections 9 to 18, and Section 22 shall apply only insofar as, and to the, extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply. Section 29(2) was analyzed, in both the majority and the concurrent judgments to consist of two parts. The first part is said to have 13. ended with the words “prescribed therefore in the schedule” and the W.P.Nos.13662, 13712 & 14803/2024 second limb is said to have commenced from “and for the purpose of. The difference of opinion arose as to whether the word “and” should be read to mean that the entire provision should be read as one whole or whether the second limb was independent and controlled the first limb. The Hon’ble Supreme Court considered an earlier judgment Qavi Khan®, wherein the majority view was that the two parts of the sub section were independent of each other while the dissenting judgment held that both should be read together as an integrated provision.

The majority judgment of the Hon’ble Supreme Court accepted the dissenting judgment of the Allahabad High Court, while the learned Judge delivering the concurrent judgment, in the Hon’ble Supreme Court, had accepted the view of the majority judgment of the Allahabad High Court.

The difference in opinion, in the judgment of the Hon’ble Supreme Court, need not detain us, as both came to the conclusion that the appeal filed by the respondents, before the Hon’ble High Court of Madhya Pradesh was within time, though for different reasons. After this judgment, the Hon’ble Supreme Court again came to consider the applicability of Section 29(2) of the Limitation Act on the 17. ^ILR (1956) 2 ALL 252

Under Section 34 of the Arbitration Act, an application for setting aside an arbitral award could be filed within three months from the date on which the arbitral award is received by the applicant or the date on which a request under Section 33 of the Arbitration Act has been disposed of by the Arbitral Tribunal. The proviso to Section 34 (3) permitted the applicant to file the application beyond the period of three months. However, such application would have to be filed within a further period of 30 days, if the Court was satisfied that the applicant was prevented by sufficient cause from making the application within the aforesaid period of three months.

The Hon’ble Supreme Court, after considering the judgment of the Hon’ble Supreme Court in Hukumdev Narain Yadav v. Lalit Narain that where the language of the legislation, excluded the applicability of the provisions of the Limitation Act, by necessary implication, any benefit under the provisions of the Limitation Act cannot be claimed. On that basis, the Hon’ble Supreme Court had held, in that case, that the filing of the application Hon’ble Supreme Court considered the applicability of Section 14 of the Limitation Act, in relation to an application made under Section 34 of the Arbitration Act. In this case, an application under Section 34 of the Arbitration Act was made, to a Court, against an arbitral award. Subsequently it was realized that the said Court did not have juri iction and the application was moved before the competent Court. This was objected by the respondent, on the ground that Section 14 of the Limitation Act would not be applicable, in view of the judgment of the Hon’ble Supreme Court in Union of India v. Popular Construction Co., excluding the applicability of Section 5 of the Limitation Act. The Hon’ble Supreme Court held that, the language of Section 34 of the Arbitration (1974) 2 see 133 (2008) 7 see 169 = 2008 See Online Se 618 W.P.Nos.13662, 13712 & 14803/2024 Act, by implication, excluded the applicability of Section 5 of the Limitation Act. However, the said language cannot be extended to exclude the provisions of Section 14 of the Limitation Act, as the language in Section 34 does not lend itself to such exclusion.

In Superintending Engineer / Debar Power House Circle / Assessing Authority, the Hon’ble Supreme Court was considering the applicability of Section 29(2) to Section 45 of the Himachal Pradesh Value Added Tax Act. Section 45 of the Act provided for an appeal against an original order, within 60 days or such extended period as the appellate authority may allow, for reasons to be recorded in writing. The Hon’ble Supreme Court after considering various judgments of the Hon’ble Supreme Court, including the aforesaid judgments, referred to above, had held that the provisions of Section 45 permitted filing of an appeal within 60 days or such more extended period, as the appellate authority may allow, and had held that Section 45 read with Section 48 of the said Act nowhere expressly or by implication exclude the applicability of the Limitation Act and had held that the provisions of Section 5 of the Limitation Act would be applicable in relation to filing of revisions under the Himachal Pradesh Value Added Tax Act.

Act.

Though Section 29 (2) requires an express exclusion to be found in the special or local law, the Hon’ble Supreme Court, in Union of India v. Popular Construction Co. had held that where the language of the legislation, excluded the applicability of the provisions of the Limitation Act, by necessary implication, any benefit under the provisions of the Limitation Act cannot be claimed. In view of this ratio, it is not necessary that there should be an express exclusion of the provisions of section 4 to 24 of the limitation Act. An exclusion can also be inferred from the language of the special or local law. A similar view taken by the Hon’ble W.P.Nos.13662, 13712 & 14803/2024 Commissioner of Customs and Central Excise & Supreme Court, in Customs V. Hongo India (P) Ltd., is extracted below:

It was contended before us that the words “expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act, The nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court. There is another aspect of the matter that needs to be considered. Would exclusion, by necessary implication, of one provision of any of Sections 4 to 24, automatically exclude all the other provisions? This has to be answered in the negative, in view of the judgment of the Hon’ble Supreme Court in 26. W.P.Nos.13662, 13712 & 14803/2024 Department and Ors. The Hon’ble Supreme court, after considering the earlier judgment in Union of India v. Popular Construction Co., excluding the applicability of Section 5 of the Limitation Act, in relation to appeals filed under Section 34 of the Arbitration and Conciliation Act, 1996, had held that the provisions of Section 14 of the Limitation Act are not excluded by any of the provisions of the Arbitration and Conciliation Act, 1996. This different treatment, accorded to different provisions, makes it clear that there has to be independent consideration of the question of exclusion of each provision. Where a special or local law, by express statement excludes all or any of Sections 4 to 24 of the Limitation Act, they cannot be applied to any proceedings under such special or local law. Where such exclusion is to deduced, by way of necessary implication, each provision would have to be considered separately and exclusion of one provision would not result in exclusion of the other provisions of section 4 to 24 of the limitation Act.

In the present case. Section 107, which provides for an appeal against orders passed under the APGST Act, stipulates that (A) an appeal, under Section 107 (1), by a dealer against any order of an adjudicating authority, can be filed within three months from the date on which the order is communicated; (B) an appeal, under Section 107 (2), by an authority under the W.P.Nos.13662, 13712 & 14803/2024 Act, against any order of an adjudicating authority, can be filed within six months from the date on which the order of the Chief Commissioner directing the filing of such an appeal is received by the said authority. Section 107 (4) authorizes the appellate authority to receive such appeals, beyond the above periods, if the appellate authority is satisfied that the appellant was prevented, by sufficient cause, from presenting the appeal within the prescribed time. However, this power to permit filing of appeals beyond the prescribed time is restricted to condoning delay of one month only. The Hon’ble Supreme Court, while considering similar provisions, In Superintending Engineer / Debar Power House Circle 30. and Taxation Officer, Sunder Nagar / Assessing Authority, the Hon’ble Supreme Court was considering an open ended power to condone delay and had held that Section 5 of the Limitation Act would be applicable.

Since the period of limitation available, under Section 107 of the APGST Act, cannot be extended beyond the period stipulated therein. Section 5 of the Limitation Act would stand excluded.

The appellate authority under Section 107 of the APGST Act would not have any power to condone the delay in filing an appeal, under . W.P.Nos.13662, 13712 & 14803/2024 Section 107 of the APGST Act, beyond the period of 30 days set out in Section 107(4) of the APGST Act.

Consequently, these Writ Petitions are dismissed. There shall be no order as to costs. Before parting with these cases, this court would also like to place on record it’s appreciation of the fair assistance extended by Ms. Jyothi Ratna Anumolu and Sri T.C.D. Sekhar, the learned Government pleader for Commercial Taxes.

As a sequel, pending miscellaneous applications, if any, shall stand closed. M. SRINIVAS ASSISTANT REGISTRAR //// /---Section officer One Fair Copy to the HON’BLE SRI JUSTICE R. RAGHUNANDAN RAO (For His Lordship’s kind perusal) One Fair Copy to the HON’BLE SRI JUSTICE HARINATH.N (For His Lordship’s kind perusal) To,