Udayan Ghosh vs. State Of West Bengal And Ors.
Original PDF →Facts
The petitioner, Udayan Ghosh, challenged an order dated September 12, 2023, passed under Section 73 of the WBGST/CGST Act, 2017, for the tax period 2019-20. He filed an appeal before the appellate authority under Section 107 of the Act, making a pre-deposit of Rs. 59,330. The appeal was delayed by 50 days due to the petitioner suffering from a serious chest infection. An application for condonation of delay under Section 5 of the Limitation Act, 1963, was filed. However, the appellate authority rejected the appeal by an order dated February 29, 2024, solely on the ground of delay, disregarding the petitioner's explanation. The petitioner filed a writ petition as the appellate tribunal was not constituted.
Held
The Court held that the appellate authority had erred in rejecting the appeal solely on the ground of delay without considering the merits, especially when the petitioner had demonstrated a sufficient cause for the delay. The Court noted that the order passed by the proper officer could not be tested on merit due to the unavailability of the appellate tribunal. While the High Court could potentially decide the matter on merits, it would require scrutiny of records and adjudication of factual issues, which is better suited for an appellate body. Therefore, the Court set aside the order dated February 29, 2024, and directed the appellate authority to hear the appeal expeditiously on its merits, preferably within 12 weeks from the date of communication of the order. The ratio decidendi is that appellate authorities should not dismiss appeals on technical grounds of delay without considering the merits, particularly when a sufficient cause is shown and higher appellate forums are unavailable.
Key Issues
1. Whether the appellate authority erred in rejecting the appeal on the ground of delay, despite the petitioner providing a sufficient cause for the delay under Section 5 of the Limitation Act, 1963, thereby preventing the adjudication of the matter on merits? Petitioner's contentions: The petitioner argued that he had a valid reason for the delay in filing the appeal, supported by an application for condonation of delay. He contended that the appellate authority wrongly rejected the appeal on technical grounds of delay without considering the merits of his case. Given the non-constitution of the appellate tribunal, he sought a decision on merits from the High Court or a direction for the appellate authority to decide the appeal on merits. Revenue's contentions: The State submitted that the appeal was admittedly filed beyond the prescribed time. However, the Additional Government Pleader did not dispute that the petitioner was prevented by a sufficient cause from preferring the appeal within the time prescribed.
Sections Cited
Section 73, Section 107, Section 5 of the Limitation Act, 1963
AI-generated summary — verify with the full judgment below
2024 Item No. ML 68 Saswata
W.P.A. 17880 of 2024 Udayan Ghosh versus The State of West Bengal & Ors.
Mr. Bhaskar Sengupta …For the petitioner Mr. Anirban Ray, Ld. GP Mr. Md. T.M.Siddiqui, AGP Mr. Tanoy Chakraborty Mr. D. Sahu …For the State
Affidavit of service filed in Court today is retained with the record.
Challenging an order dated 12th September 2023 passed under Section 73 of the WBGST /CGST Act, 2017 (hereinafter referred to as the “said Act”) in respect of the tax period from 2019-20, an appeal was filed before the appellate authority under Section 107 of the said Act.
Mr. Sengupta, learned advocate appearing for the petitioner would submit that at the time of filing of the appeal the petitioner had made a pre deposit of Rs. 59,330/ as is required for maintaining an appeal. According to him since the petitioner was suffering from serious chest infection, he could not take adequate steps to prefer the appeal within the time prescribed, which resulted in a delay of 50 days. The aforesaid fact was duly brought to the notice of the appellate authority through an application for condonation of delay under Section 5 of the Limitation Act, 1963. Notwithstanding the above, the appellate authority had rejected the appeal by an order dated 29th February 2024 on the ground of delay disregarding the explanation given by the petitioner.
2
It is submitted that though the petitioner has a statutory remedy before the appellate tribunal, the appellate tribunal having not been constituted, the instant writ petition has been filed. In such circumstances, the petitioner prays for determination of the issues involved, on merit, since the matter has not been decided by the appellate authority on merit.
Mr. Siddiqui, learned Additional Government Pleader submits that admittedly the appeal was filed beyond the time prescribed. Having regard thereto, the order passed by the appellate authority cannot be said to be irregular. He, however, does not dispute the fact that the petitioner was otherwise prevented by sufficient cause from preferring the appeal within the time prescribed.
Heard the learned advocates appearing for the respective parties and considered the materials on record.
I find that the petitioner challenges an adjudication order passed under Section 73 of the said Act. Though, there are successive appellate forums, admittedly in the instant case the order passed by the proper officer could not be tested on merit, since, the appellate tribunal is also not available. Having regard to the case made out by the petitioner, although it is necessary to adjudicate the matter on merit, a decision on merit would require not only scrutiny of the record but an adjudication of factual issues.
In my view, it shall not be prudent to decide all such questions especially when an appellate body, which has access to the record can conveniently decide the same on merits. Having regard to the above, the order dated 29th February 2024 is set aside and the appellate authority is
3 directed to hear out the appeal as expeditiously as possible, preferably within a period of 12 weeks from the date of communication of this order.
With the above observations and directions, the instant writ petition being WPA 17880 of 2024 is accordingly disposed of.
All parties are to act on the basis of the server copy of this order duly downloaded from this Court’s official website.
(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.