Silverline Gifts And Anr. vs. Deputy Commissioner, State Tax, Colootola And Ezra Street Charge And Ors.
Original PDF →Facts
The petitioners, Silverline Gifts & Anr., filed a writ petition challenging an order dated April 1, 2024, passed by the appellate authority under Section 107 of the WBGST/CGST Act, 2017. The appeal was rejected on the grounds of delay, despite the petitioners submitting an explanation and praying for condonation. The petitioners argued that they had a legal right to file a statutory appeal, which was denied due to the appellate tribunal not yet being constituted. The State contended that the appeal was filed beyond the prescribed period, making the rejection order not irregular. The petitioners had filed an appeal against an adjudication order passed under Section 73 of the said Act for the tax period July 1, 2017, to March 31, 2018, along with the required pre-deposit.
Held
The Court held that the appellate authority's order rejecting the appeal on the ground of delay was cryptic and did not consider the petitioners' explanation for condonation. While acknowledging the statutory remedy of appeal before the appellate tribunal, the Court noted that the tribunal is yet to be constituted. Therefore, in the interest of justice and to allow for adjudication on merits, the Court found it prudent to remand the matter back to the appellate authority. The order dated April 1, 2024, passed by the appellate authority, rejecting the appeal arising from the adjudication order dated April 6, 2023, under Section 73 of the said Act for the tax period July 1, 2017, to March 31, 2018, was set aside. The ratio decidendi is that when a statutory appeal is rejected solely on delay without considering condonation, and the appellate tribunal is not functional, the High Court may remand the matter to the lower appellate authority for a decision on merits.
Key Issues
1. Whether the appellate authority's rejection of the appeal on grounds of delay, without considering the explanation for condonation, is legally sustainable, particularly in light of the non-constitution of the appellate tribunal? (Question of law and fact, turning on Section 107 of the WBGST/CGST Act, 2017). Petitioner's Arguments: The petitioners contended that the appeal was rejected on grounds of marginal delay, and their explanation for condonation was not considered. They argued that they have a statutory right to appeal, which has been denied as the tribunal is yet to be constituted, necessitating the writ petition. They sought the matter to be heard on merits. Revenue's Arguments: The State submitted that the appeal was admittedly filed beyond the prescribed period, and therefore, the order of rejection by the appellate authority could not be considered irregular.
Sections Cited
Section 107, Section 73
AI-generated summary — verify with the full judgment below
ML -62 04.09.2024 b.r./D. Hira Ct No. 5
IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURI ICTION APPELLATE SIDE
WPA 17824 of 2024
Silverline Gifts & Anr. Vs. Deputy Commissioner, State Tax, Colootola & Ezra Street Charge & Ors.
Mr. Souradeep Majumdar.
… for the petitioners
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.
Leave is granted to correct the writ petition number as appearing on the affidavit-of- service, in course of the day.
Challenging an order dated 1st April, 2024 passed by the appellate authority under Section 107 of the WBGST/CGST Act, 2017 (hereinafter referred to as the said Act), the present writ petition has been filed.
The petitioners by placing the Form GST APL – 02 would submit that the appeal had been
2 rejected on the ground of delay notwithstanding there was only a marginal delay in filing the appeal.
It is submitted that appropriate explanation had also been provided praying for condonation of the delay. Such explanation had also not been considered. The petitioners say that they have a legal right to file a statutory appeal before the appellate tribunal which has been denied since, the tribunal is yet to be constituted. As such the present writ petition has been filed. In view thereof, this Court may be pleased to hear out the matter on merits.
Mr. Siddique, learned Additional Government Pleader appearing for the respondents submits that admittedly in this case the appeal was filed beyond the prescribed period and as such the order of rejection passed by the appellate authority cannot be said to be irregular.
Heard the learned advocates appearing for the respective parties and considered the materials on record, I find that the petitioners challenging the adjudication order passed under Section 73 of the said Act for the tax period from July 1, 2017 to March 31, 2018
3 had filed an appeal along with the pre-deposit as was required for maintaining the appeal. Since the appeal was filed beyond the prescribed period the petitioners had filed an application praying for condonation of delay. The appellate authority, however, by a cryptic order had rejected the appeal on the ground of delay. I find that though the petitioners have a statutory remedy in the form of an appeal before the appellate tribunal, the tribunal is yet to be constituted.
Having regard thereto, I am of the view that it would be prudent at this stage to remand the matter back to the appellate authority for adjudication on merits.
As a sequal thereto, the order dated 1st April, 2024 passed by the appellate authority issued in Form GST APL – 02 arising out of the challenge to the order dated 6th April, 2023 passed under Section 73 of the said Act, in respect of the tax period from July 1, 2017 to March 31, 2018 stands set aside.
With the above observations and directions, the writ petition stands disposed of.
Urgent certified copy of this order, if applied
4 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.