Sunil Mondal vs. The State Of West Bengal And Ors.
Original PDF →Facts
The petitioner, Sunil Mondal, filed a writ petition challenging an order dated April 15, 2024, passed by the appellate authority under Section 107 of the WBGST/CGST Act, 2017. This order rejected his appeal against an adjudication order dated July 3, 2023, passed under Section 73 of the Act for the tax period April 2020 - March 2021. The petitioner had filed the appeal with a pre-deposit of Rs. 9,626/-. The appeal was delayed by thirty-one days due to the petitioner's medical condition, and an application for condonation of delay, supported by medical documents, was submitted. The appellate authority, however, rejected the appeal on grounds of delay through a cryptic order, without considering the merits. The petitioner approached the High Court as the appellate tribunal under the Act was yet to be constituted.
Held
The Court held that the appellate authority's order dated April 15, 2024, was a non-speaking order and was liable to be set aside. The Court found it prudent to remand the matter back to the appellate authority for adjudication on merits, given that the appellate tribunal had not been constituted and no adjudication on merits had occurred. The reasoning was that the petitioner's case involved an adjudication order that required testing on merits, necessitating a detailed scrutiny of factual issues and records. The ratio decidendi is that where an appeal is rejected solely on delay without considering the condonation application and merits, and the appellate tribunal is not functional, the High Court in its writ jurisdiction should remand the matter for fresh adjudication on merits. The order of the appellate authority was set aside, and the appellate authority was directed to hear and dispose of the appeal on merits expeditiously, preferably within twelve weeks. The petitioner was granted the benefit of Section 107(8) of the said Act during the pendency of the appeal.
Key Issues
1. Whether the appellate authority erred in rejecting the appeal solely on the ground of delay without considering the application for condonation of delay and the merits of the case, contrary to principles of natural justice, under Section 107 of the WBGST/CGST Act, 2017? Petitioner's arguments: The petitioner argued that the appellate authority's order was cryptic and non-speaking, leading to the petitioner being rendered remediless, especially since the appellate tribunal was not yet constituted. He contended that the court should take up the matter on merits and stay the demand. The petitioner relied on the fact that he had submitted medical documents to support his delay condonation application. Revenue's arguments: The State respondents admitted that the appeal was filed belatedly and was dismissed on that ground. However, they could not elaborate on whether the application for condonation of delay had been considered.
Sections Cited
Section 107, Section 73, Section 107(8)
AI-generated summary — verify with the full judgment below
ML -66 04.09.2024 b.r./D. Hira Ct No. 5
IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURI ICTION APPELLATE SIDE
WPA 17870 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
Affidavit-of-service filed in Court today is taken on record.
Challenging an order dated 15th April, 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.
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 2020 - March 2021, the aforesaid appeal had been filed along with pre- deposit of Rs.9,626/-.
Since the petitioner was unwell, by reasons of his medical condition, there had been a delay
2 of thirty-one days in preferring the appeal.
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.
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 juri iction. 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.
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 had been dismissed. He however, could not elaborate whether the application for condonation of delay had been
3 considered.
Heard the learned advocates appearing for the respective parties and taken note of the fact that the petitioner questions an adjudication order and the same is required to tested on merits. To consider the merits thereof, detailed scrutiny of factual issues and the records should be necessary.
I am of the view that at this stage since, the appellate tribunal has not been constituted, and there has been no adjudication on merits by the appellate authority it would be prudent to remand the matter back to the appellate authority for adjudication on merits.
As a sequel thereto, the order passed by the appellate authority dated 15th April, 2024 which is a non-speaking order and forms subject matter of challenge in the writ petition is set aside.
The appellate authority shall hear out and dispose of the appeal on merits as expeditiously as possible preferably within a period of twelve weeks from the date of communication of this order. Needless to note that during pendency of the appeal the
4 petitioner shall be entitled to the benefit of Section 107(8) of the said Act.
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.