Hind Palace Private Limited vs. Jassistant Commissioner Of State Tax, Chandini Chawk And Princep Street Charge And Ors.
Original PDF →Facts
The petitioner, Hind Palace Private Limited, filed a writ petition challenging an order dated December 5, 2024, passed by the Assistant Commissioner of State Tax. This order rejected the petitioner's appeal, filed under Section 107 of the WBGST/CGST Act, 2017, on the grounds of limitation. The original order under challenge was dated April 5, 2023, passed under Section 73 of the said Act, pertaining to the tax period of July 2017 to March 2018. The Court noted that the entire demand, including penalty, had already been recovered from the petitioner. It also observed that the petitioner was denied the remedy before the appellate tribunal due to its non-constitution.
Held
The Court held that the appellate authority erred in rejecting the appeal solely on the ground of limitation. It was guided by the Division Bench judgment in S.K. Chakraborty v. Union of India, which established that Section 5 of the Limitation Act, 1963, is applicable to appeals filed under the WBGST/CGST Act, 2017, and the delay can be condoned. The Court reasoned that denying the petitioner the opportunity to have their appeal heard on merits due to a procedural technicality, especially when the appellate tribunal is not constituted, would be unjust. The Court also considered the availability of records on the portal, making it easier for the appellate authority to decide the matter. Therefore, the order rejecting the appeal was set aside, the delay was condoned, and the matter was remanded back to the appellate authority for a decision on merits.
Key Issues
1. Whether the appellate authority erred in rejecting the appeal solely on the ground of limitation, without considering the applicability of Section 5 of the Limitation Act, 1963, to appeals filed under Section 107 of the WBGST/CGST Act, 2017? Petitioner's Contention: The petitioner argued that the appellate authority's rejection of the appeal on limitation grounds was erroneous. They relied on the Division Bench judgment of this Court in S.K. Chakraborty v. Union of India (2023 SCC Online Cal 4759), which held that the provisions of Section 5 of the Limitation Act cannot be excluded. The petitioner contended that the delay in filing the appeal should have been condoned. Revenue's Contention: The judgment records no specific argument from the State or its authorities regarding the applicability of Section 5 of the Limitation Act or the merits of the appeal. The appellate authority's order, which is under challenge, rejected the appeal on the ground of limitation.
Sections Cited
Section 107, Section 73
AI-generated summary — verify with the full judgment below
2025 ML Item No. 06 Ct.-05 Sayandeep Hind Palace Private Limited versus Assistant Commissioner of State Tax Chandini Chowk & Princep Street Charge & Ors.
Ms. Sanjana Jha Ms. Sukanya Dutta Mr. A. Jha ….For the petitioner Mr. Anirban Ray, Ld. GP Mr. Md. T.M.Siddiqui, Ld. AGP Mr. Tanoy Chakraborty Mr. Saptak Sanyal …For the State
Challenging the order dated 5th December, 2024 rejecting an appeal under Section 107 of the WBGST/CGST Act, 2017 (hereinafter referred to as the said Act) on the ground of limitation arising out of an order dated 5th April, 2023 under Section 73 of the said Act for the tax period of July, 2017 to March, 2018, the instant writ petition has been filed.
Having heard the learned advocates appearing for the respective parties and having ascertained that the entire demand along with penalty has already been recovered from the petitioner and also noting that despite the multi tiered adjudicatory process being provided for to a registered tax payer, the petitioner has been denied the benefit of availing the remedy before the appellate tribunal by reasons of the appellate tribunal not being constituted, I am of the view that the matter requires consideration on merits.
This apart, although the appellate authority has purported to reject the appeal on the ground that there is no scope to entertain the appeal beyond the prescribed period, the Division Bench of this Court in the case of S.K. Chakraborty v. Union of India reported in 2023 SCC Online Cal 4759 had held that that the provisions of Section 5 of the Limitation Act cannot be excluded. In view thereof, the matter requires to be remanded back. Such direction is also necessary having regard to the fact that the records of the case are available on the portal which is easily accessible by the appellate authority, and on the contrary for this Court to decide this cause all relevant records would be required to be called for.
Having regard thereto, while setting aside the order dated 5th December, 2024, and by condoning the delay, I direct the appellate authority to hear out and decide the appeal on merits as expeditiously as possible but not later than eight weeks from the date of communication of this order.
With the above observations and directions, the writ petition is disposed of.
All parties shall act in terms of the server copy of this order duly downloaded from the official website of this Court.
(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.