Pramod Kumar Baranwal vs. Assistant Commissioner Of Revenue, Asansol Charge And Ors.
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The petitioner, Pramod Kumar Baranwal, is challenging an order passed by the Assistant Commissioner of Revenue, Asansol Charge & Ors. An order under Section 65 of the CGST/WBGST Act, 2017, was passed for the period July 1, 2017, to March 31, 2018, following an audit. A summary of this order and demand in Form GST DRC-07 was uploaded on August 24, 2023. The petitioner filed an appeal before the appellate authority with a pre-deposit of Rs. 46,860. The appeal was filed belatedly, with the petitioner providing explanations for the delay. The appellate authority dismissed the appeal on January 24, 2024, citing that it was filed 137 days after the adjudication order and beyond the prescribed limitation period of one month, without considering the petitioner's explanation for the delay.
Held
The Court held that the appellate authority failed to exercise its jurisdiction by not considering the petitioner's explanation for the delay in filing the appeal. The Court found the appellate authority's order dated January 24, 2024, unsustainable and set it aside. The Court noted that the delay in filing the appeal was 44 days. The Court accepted the petitioner's explanation for the delay, citing the demise of his wife and the treatment of his daughter as sufficient reasons. The Court condoned the delay and directed the appellate authority to hear and dispose of the appeal on its merits expeditiously, preferably within eight weeks from the date of communication of the order. The ratio decidendi is that appellate authorities must consider explanations for delay, especially when supported by valid reasons, and that Section 5 of the Limitation Act, 1963, can be applied for condoning such delays, as per the directive in S. K. Chakraborty & Sons v. Union of India.
Key Issues
1. Whether the appellate authority erred in dismissing the appeal without considering the petitioner's explanation for the delay, contrary to the principles laid down in S. K. Chakraborty & Sons v. Union of India? The petitioner argued that the appellate authority failed to exercise its jurisdiction by not considering the explanation provided for the delay in filing the appeal. The petitioner contended that the delay was due to personal reasons, including the demise of his wife and the treatment of his daughter. The petitioner relied on the decision in S. K. Chakraborty & Sons v. Union of India, which held that Section 5 of the Limitation Act, 1963, is attracted for condoning delays beyond one month from the prescribed period. The respondents, represented by the learned GP, did not appear to have made specific arguments on the merits of the delay condonation in the judgment. The judgment notes that the appellate authority dismissed the appeal based on the time elapsed from the adjudication order.
Sections Cited
Section 65, Section 5
AI-generated summary — verify with the full judgment below
M/L 107 19.08.2024 sb Ct 5
IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURI ICTION APPELLATE SIDE
WPA 16281 of 2024
Pramod Kumar Baranwal Versus Assistant Commissioner of Revenue, Asansol Charge & Ors.
Mr. Souradeep Majumder
… For the petitioner.
Mr. Anirban Ray, Ld. GP
Mr. T. M. Siddiqui
Mr. Tanoy Chakraborty
Mr. Saptak Sanyal
Mr. N. Chatterjee
… For the respondents.
Affidavit of service filed in Court today on behalf of the petitioner is taken on record.
On the basis of an audit proceeding initiated by the respondents, an order was passed under Section 65 of the CGST/WBGST Act, 2017 (hereinafter referred to as the “said Act”) for the period from 1st July, 2017 to 31st March, 2018. In furtherance to the same, a summary of the order cum demand in Form GST DRC -07 dated 24th August, 2023 was also uploaded in the common portal.
Being aggrieved, the petitioner had filed an appeal before the appellate authority along with the pre- deposit of Rs.46860/- as is required for maintaining the appeal. Since the appeal was belatedly filed, the
2 petitioner claims to have provided certain explanations for the delay.
Mr. Siddiqui Learned Additional Pleader enters appearance on behalf of the respondents.
Heard the learned advocates appearing for the respective parties and considered the materials on record. It appears from the records that the appeal was delayed by 44 days. The appellate authority by its order dated 24th January, 2024 without going into the explanation provided by the petitioner and taking note of the fact that the appeal had been filed after 137 days from the order of adjudication and since according to the appellate authority there was no scope to admit the appeal filed beyond a month from the prescribed period of limitation, the appeal had been dismissed. From the tenor of the order passed by the appellate authority it is very clear that the appellate authority without even considering the explanation provided by the petitioner
as regards condonation of delay had purported to dismiss the appeal. The aforesaid order appears to be contrary to the directive issued by the Hon’ble Division Bench of this Court in the case of S. K. Chakraborty & Sons v. Union of India reported in 2023 SCC OnLine Cal 4759, which, inter alia, provides that the provisions of Section 5 of the Limitation Act, 1963
3 stands attracted for condoning the delay beyond one month from the prescribed period. It is rather unfortunate to say the least that despite repeated orders passed by this Court, the appellate authority choose to overlook the same. This Court does not appreciate the same.
Having regard to the above and since the appellate authority had failed to exercise the juri iction vested in it, in considering the explanation given by the petitioner, I am of the view that the order passed by the appellate authority on 24th January, 2024 cannot be sustained and the same is accordingly set aside.
Further taking note of the explanation given by the petitioner that the petitioner had been prevented from preferring an appeal by reasons of the demise of his wife and the treatment of his daughter, I am of the view that the petitioner has been able to sufficiently explain the delay in preferring the appeal belatedly.
In view thereof while condoning the delay in preferring the appeal, I direct the appellate authority to hear out and dispose of the appeal on merits, as expeditiously as possible, preferably within a period of eight weeks from the date of communication of this order.
With the above observations and directions, the writ
4 petition is disposed of. Urgent Photostat certified copy of this order, if applied for, be made available to the parties upon compliance of requisite 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.