Kanakdhara Infrastructure Private Limited vs. Assistant Commissioner Of Revenue, College Street And Sealdah Charge And Ors.
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The petitioner, Kanakdhara Infrastructure Private Limited, challenged an order passed under Section 73 of the WBGST/CGST Act, 2017, in Form DRC 08 dated February 1, 2024, for the tax period April 2018 to March 2019. An appeal was filed under Section 107 of the Act, but it was delayed by eighteen days. The Appellate Authority, by an order in Form GST APL 02 dated August 14, 2024, rejected the appeal solely on the grounds of limitation, stating it lacked the power to accept appeals beyond four months from the communication of the order being appealed. The petitioner had provided an explanation for the delay and made a pre-deposit of Rs. 1,42,752/-.
Held
The Court held that the order of the Appellate Authority rejecting the appeal on the ground of limitation was unsustainable. The Court noted that the Appellate Authority's observation that it had no power to accept an appeal after four months from the communication of the order appealed against was contrary to the Division Bench judgment in S.K. Chakraborty & Sons versus Union of India. The Court found the petitioner's explanation for the delay acceptable, noted the pre-deposit of Rs. 1,42,752/-, and considered that the Appellate Tribunal under Section 109 of the Act was yet to be constituted. Consequently, the Court set aside the Appellate Authority's order and remanded the appeal back to the Appellate Authority for a decision on merits. The ratio decidendi is that in the absence of a constituted Appellate Tribunal, the Appellate Authority has the power to condone delays in filing appeals, provided there is a reasonable explanation and other conditions like pre-deposit are met.
Key Issues
1. Whether the Appellate Authority has the power to condone a delay in filing an appeal beyond the prescribed period under Section 107 of the WBGST/CGST Act, 2017, when the Appellate Tribunal under Section 109 has not yet been constituted? Petitioner's Argument: The petitioner contended that the Appellate Authority erred in rejecting the appeal on grounds of limitation. They argued that there was a valid explanation for the eighteen-day delay. Furthermore, they relied on the judgment of the Division Bench of this Court in S.K. Chakraborty & Sons versus Union of India (2023 SCC Online Calcutta 4759) to support their claim that the Appellate Authority possesses the power to condone such delays, especially in the absence of a constituted Appellate Tribunal. Revenue's Argument: The judgment does not record any specific arguments made by the revenue or state.
Sections Cited
Section 73, Section 107, Section 109
AI-generated summary — verify with the full judgment below
M/L - 8 03.03.2025 and Sealdah Charge & Ors.
Mr. Sandip Chorasia, Mr. Akash Chakraborty …for the petitioner. Mr. A. Ray, Md. T.M. Siddiqui, Mr. T. Chakraborty, Mr. D. Sahu Mr. S. Sanyal …for the State.
Challenging the order passed under Section 73 of the WBGST/CGST Act, 2017 (hereinafter referred to as the said Act) in Form DRC 08 dated 1st February, 2024 for the tax period April 2018 to March 2019 an appeal was filed under Section 107 of the said Act in Form GST APL 01 along with pre-deposit as is required for maintaining such appeal.
Admittedly, the appeal was filed beyond the prescribed period and there was a delay of eighteen days. According to the petitioner, although there was appropriate explanation for the delay, the Appellate Authority by an order passed in Form GST APL 02 dated 14th August, 2024 had rejected the appeal on the ground of limitation, inter alia, holding that there is no power vested with the Appellate Authority to accept the
2 appeal after four months from the date of communication of the order appealed against.
Having heard the learned advocates appearing for the respective parties and noting that the aforesaid observation made by the Appellate Authority is contrary to the judgment delivered by the Division Bench of this Court in the case of S.K. Chakraborty & Sons versus Union of India reported in 2023 SCC Online Calcutta 4759, I am of the view that the aforesaid order cannot be sustained. The same is accordingly set aside.
Further taking note of the explanation given by the petitioner and noting that the petitioner had duly put in pre-deposit of Rs.1,42,752/- and also noting that the Appellate Tribunal under Section 109 of the said Act is yet to be constituted, I am of the view that the appeal should be remanded back to the Appellate Authority for a decision on merits.
With the above observations and directions, the writ petition stands disposed of.
There shall be no order as to costs.
All parties shall act on the basis 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.