Rifat Aamina vs. Assistant Commissioner Of Revenue, State Tax, Howrah And Kadamtala Charge And Ors.
Original PDF →Facts
The petitioner, Rifat Aamina, filed a writ petition challenging an order dated January 24, 2025, passed under Section 107 of the WBGST/CGST Act, 2017. This order rejected the petitioner's appeal against an earlier order passed under Section 73 of the same Act, solely on the grounds of delay. The petitioner contended that the original order was not served through other communication modes, but only uploaded on the portal, leading to the delay in filing the appeal. The appellate authority rejected this argument, stating the order was duly uploaded. The petitioner's advocate later submitted an affidavit attributing the delay to his failure to collect notices.
Held
The Court held that while the explanation for the delay was not entirely sufficient, it would be more convenient for the appellate authority to decide the appeal on merits, especially since the appellate tribunal was yet to be constituted and the relevant records were available on the portal. The Court noted that the appellate authority under Section 107 had not adjudicated the matter on merits, and there was only a marginal delay. To avoid the adjudication order being tested before the High Court at the first instance due to the non-constitution of the appellate tribunal, the Court found it prudent to remand the matter back to the appellate authority for adjudication on merits. The petitioner was directed to deposit 5% of the remaining amount of tax in dispute, in addition to the amount already deposited, under Section 107(6) of the said Act. The appellate authority was then directed to hear and dispose of the appeal on merits in accordance with law. No issue was expressly left undecided.
Key Issues
1. Whether the rejection of the petitioner's appeal under Section 107 of the WBGST/CGST Act, 2017, solely on the ground of delay, without adjudicating on merits, is sustainable, given the circumstances of service of the original order and the advocate's failure to collect notices. Petitioner's arguments: The petitioner argued that the original order was only uploaded on the portal, not served through other modes, causing the delay in filing the appeal. Furthermore, the delay was attributed to the petitioner's advocate's failure to collect notices. The petitioner implicitly argued that the appellate authority should have considered the merits of the case despite the delay. Revenue/State's arguments: The State contended that the order was duly uploaded on the portal, and this constituted sufficient communication, making the delay inexcusable. The State did not appear to argue against the merits of the original order, focusing solely on the procedural delay.
Sections Cited
Section 107, Section 73, Section 107(6)
AI-generated summary — verify with the full judgment below
ML - 61 03.09.2025 and Kadamtala Charge & Ors.
Mr. Arya Das,
Mr. Amit Kumar Shaw,
Mr. Pritom Banerjee.
… for the petitioner
Mr. Amitabrata Roy,
Mr. Nilotpal Chatterjee,
Mr. Tanoy Chakraborty,
Mr. Sapak Sanyal.
.. for the State
Affidavit-of-service filed in Court today is taken on record.
The present writ petition has been filed inter alia, challenging an order passed under Section 107 of the WBGST/CGST Act, 2017 (hereinafter referred to as the said Act), dated 24th January, 2025, rejecting petitioner’s appeal from an order passed under Section 73 of the said Act on the ground of delay.
The petitioner claims that the order impugned was not served by the other modes of communication provided for communication of an order but was only uploaded on the portal and for such reason, there had been delay in filing the appeal.
The aforesaid contention of the petitioner was
2 not accepted by the appellate authority for the simple reason that the order which was impugned in the appeal was duly uploaded on the portal.
Learned advocate appearing for the petitioner however, by placing before this Court an affidavit affirmed by the petitioner’s advocate on 12th January, 2024, would submit that by reasons of failure on the part of the petitioner’s advocate who was looking after the matter, to collect all notices that the petitioner could not file the appeal in time.
Heard the learned advocates for the respective parties and considered the materials on record. Ordinarily, though the explanation for the delay is not entirely sufficient, however, having regard to the fact that the appellate tribunal is yet to be constituted and since, the relevant records are available on the portal, it would be far more convenient for the appellate authority to decide the appeal on merits.
Having regard to the aforesaid and the fact that the appellate authority under Section 107 of the said Act did not adjudicate the matter on merits though, there was only a marginal delay in filing the appeal and to avoid the
3 adjudication order to be tested before this Court at the first instance by reasons of the appellate tribunal not been constituted, in my view, it would be prudent to remand the matter back to the appellate authority for adjudication on merits. However, the petitioner should be put to terms.
Thus, in the event, the petitioner deposits 5% of the remaining amount of tax in dispute in addition to the amount already deposited, under Section 107(6) of the said Act, the appellate authority shall hear out and dispose of the appeal on merits in accordance with law.
With the above observations and directions, this writ petition stands disposed of.
There shall be no order as to costs.
Urgent certified copy of this order, if applied for, be made over to the parties upon compliance of all necessary formalities.
(Raja Basu Chowdhury, J.)
Reproduced from the public record of the Calcutta High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.