Sunil Mondal vs. The State Of West Bengal And Ors.

WPA/17863/2024HC CalcuttaGSTCNR WBCHCA034397202404 September 2024Bench: HON'BLE JUSTICE RAJA BASU CHOWDHURY4 pages

AI SummaryRemanded

Facts

The petitioner, Sunil Mondal, filed a writ petition challenging an order dated February 22, 2024, passed by the appellate authority under Section 107 of the WBGST/CGST Act, 2017. This order had rejected his appeal against an adjudication order dated July 3, 2023, passed under Section 73 of the Act for the tax period April 2019-March 2020. The petitioner had filed the appeal with a pre-deposit of Rs. 84,758/-. The appeal was delayed by thirty-one days due to the petitioner's illness, supported by medical documents. The appellate authority rejected the appeal solely on the ground of delay without considering the merits. The petitioner approached the High Court as the appellate tribunal was not yet constituted.

Held

The Court held that the appellate authority's order dated February 22, 2024, was a non-speaking order and was therefore set aside. The Court found that the appellate authority had not adjudicated the matter on merits, and there was only a marginal delay in filing the appeal. Given that the appellate tribunal was not constituted, the High Court was the forum to test the order of the adjudicating authority. The Court deemed it prudent to remand the matter back to the appellate authority for adjudication on merits. The appellate authority was directed to hear and dispose of the appeal on merits as expeditiously as possible, preferably within twelve weeks from the date of communication of the order. The ratio decidendi is that where an appeal is rejected on delay without considering merits, and the statutory appellate tribunal is not functional, the High Court in its writ jurisdiction should remand the matter for adjudication on merits.

Key Issues

1. Whether the appellate authority was justified in rejecting the appeal solely on the ground of a thirty-one-day delay, without considering the application for condonation of delay and the merits of the case, particularly when the appellate tribunal is yet to be constituted? (Question of law and mixed fact and law, turning on Section 107 of the WBGST/CGST Act, 2017). Petitioner's contentions: The petitioner argued that the appellate authority's order was cryptic and non-speaking, rendering him remediless as the appellate tribunal was not constituted. He urged the Court to consider the matter on merits and stay the demand raised by the respondents. The petitioner relied on the medical documents to justify the delay. Revenue/State's contentions: The State respondents submitted that the appeal was admittedly filed belatedly and was therefore dismissed. They could not elaborate on whether the application for condonation of delay was considered.

Sections Cited

Section 107, Section 73

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances

ML -65 04.09.2024 b.r./D. Hira Ct No. 5 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE WPA 17863 of 2024 Sunil Mondal Vs. The State of West Bengal & Ors. Mr. Bhaskar Sengupta. … for the petitioner Mr. Anirban Ray, ld. G.P., Mr. T.M. Siddique, Mr. T. Chakraborty, Mr. S. Sanyal. … for the State 1. Affidavit-of-service filed in Court today is taken on record. 2. Challenging an order dated 22nd February, 2024 passed by the appellate authority under Section 107 of the WBGST/CGST Act, 2017 (hereinafter referred to as the said Act), the instant writ petition has been filed. 3. The petitioner submits that challenging an adjudication order passed under Section 73 of the said Act dated 3rd July, 2023 for the tax period from April 2019-March 2020, the aforesaid appeal had been filed along with pre- deposit of Rs.84,758/-. 4. Since the petitioner was ill, by reasons of his medical condition, there had been a delay of 2 thirty-one days in preferring the appeal. 5. Since the appeal was belatedly filed, the appeal was accompanied by an application for condonation of delay. The relevant medical documents have been enclosed to support the petitioner’s contention. Unfortunately, the appellate authority by a cryptic order had rejected the appeal on the ground of delay. 6. Mr. Sengupta, learned advocate appearing for the petitioner, submits that the petitioner has been rendered remediless since, the appellate tribunal under the said Act is yet to be constituted and as such has applied before this Hon’ble Court by invoking its extraordinary writ jurisdiction. He submits that this Hon’ble Court may take up the matter on merits and pending hearing of this petition, the demand raised by the respondents in Form GST DRC – 07 dated 3rd July, 2023 be stayed. 7. Mr. Siddique, learned Additional Government Pleader appearing on behalf of the State respondents submits that admittedly the appeal was filed belatedly and having regard thereto the same has been dismissed. He however, could not elaborate whether the application for condonation of delay had been 3 considered. 8. Heard the learned advocates appearing for the respective parties and taken note of the fact that the petitioner questions an adjudication order, and to consider the merits thereof, detailed scrutiny of the records and factual issues would be necessary. 9. 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 and there was only a marginal delay in filing the appeal and for the first time before this Court the

order passed by the adjudicating authority shall be tested by reasons of the appellate tribunal not been constituted, it would be prudent to remand the matter back to the appellate authority for adjudication on merits.

10.

As a sequel thereto, the order passed by the appellate authority dated 2nd February, 2024 being a non-speaking order, forming the subject matter of challenge in the writ petition is set aside.

11.

The appellate authority shall hear out and dispose of the appeal on merits as

4 expeditiously as possible, preferably within a period of twelve weeks from the date of communication of this order.

12.

With the above observations and directions, this writ petition stands disposed of. There shall be no order as to costs.

13.

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.