Saha Construction vs. Assistant Commissioner Of Revenue, State Tas_Serampore Charge And Ors.
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The petitioner, Saha Construction, filed a writ petition challenging an order dated March 28, 2024, passed by the appellate authority under Section 107 of the WBGST/CGST Act, 2017. This order had rejected the petitioner's appeal against an order dated October 9, 2023, passed under Section 73(9) of the said Act. The appeal was filed on February 22, 2024, along with a pre-deposit and a separate application for condonation of delay, citing a delay of 13 days due to medical reasons. The appellate authority, despite acknowledging the medical documents submitted by the petitioner, rejected the appeal as being delayed by more than 4 months.
Held
The Court held that the appellate authority's order was perverse and based on a complete non-application of mind. The Court found that the appellate authority, despite acknowledging the medical reasons for the delay and the submission of relevant documents, mechanically rejected the appeal. The Court emphasized that when an application for condonation of delay is filed, the appellate authority is obliged to consider it. The judgment noted that the appellate authority had relied on Section 107(4) of the said Act to dismiss the appeal for being filed beyond the prescribed time, without adequately considering the petitioner's explanation for the delay. The Court found that the petitioner had sufficiently explained the delay. Consequently, the Court set aside the appellate authority's order, condoned the delay in preferring the appeal, and directed the appellate authority to hear and dispose of the appeal on its merits within 8 weeks from the communication of the order, after providing an opportunity of hearing to the petitioner.
Key Issues
1. Whether the appellate authority erred in rejecting the appeal on grounds of delay without properly considering the application for condonation of delay and the supporting medical documents, thereby demonstrating a non-application of mind? Petitioner's arguments: The petitioner contended that the appellate authority's order was passed without proper application of mind. They argued that the delay in filing the appeal was adequately explained by medical reasons, supported by documentary evidence. The petitioner asserted that the appellate authority glossed over these reasons and the submitted medical documents when rejecting the appeal. They relied on directives from this Court in Mukul Islam v. The Assistant Commissioner of Revenue, State Tax Cooch Behar range & Ors. (WPA 917 of 2024) and a Division Bench judgment in S.K. Chakraborty & Sons versus Union of India. Revenue's arguments: The State respondents were represented by the learned Government Pleader, but the judgment does not record any specific arguments made by them in response to the petitioner's contentions regarding the condonation of delay or the merits of the appeal.
Sections Cited
Section 107, Section 73(9), Section 107(4)
AI-generated summary — verify with the full judgment below
Form No.J(2) IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURI ICTION APPELLATE SIDE Present: The Hon’ble Justice Raja Basu Chowdhury
WPA 12141 of 2024 Saha Construction Versus The State Tax Officer, Serampore Charge & Ors. For the petitioner : Mr. Sandip Choraria Mr. Rajiv Pareek Mr. Rishav Manna For the State : Mr. Anirban Ray, Ld. GP Mr. T.M.Siddiqui Mr. Tanoy Chakraborty Mr. Saptak Sanyal Heard on : 4th July, 2024 Judgment on : 4th July, 2024. Raja Basu Chowdhury, J:
The present writ petition has been filed, inter alia, challenging the order dated 28th March 2024 passed by the appellate authority under Section 107 of the WBGST/CGST Act, 2017 (hereinafter referred to as the “said Act”).
It is the petitioner’s case that challenging the order dated 9th October 2023 passed under Section 73(9) of the said Act, an appeal had been filed before the appellate authority on 22nd February 2024
2 along with the pre-deposit as is required for maintaining the appeal. Simultaneously, the petitioner had also filed a separate application for condonation of delay explaining in detail, the grounds on which the petitioner had sought for condonation of delay. It appears that a delay of 13 days had occurred due to medical reasons.
At the time of hearing of the aforesaid appeal the petitioner had placed relevant documents to substantiate its claim of illness. Records reveal that the appellate authority despite acknowledging the medical treatment documents submitted by the petitioner, had rejected the said appeal since the same was delayed by more than 4 months from the date of the order against which the appeal was filed.
Mr. Choraria, learned advocate appearing for the petitioner submits that the aforesaid order has been passed based on complete non application of mind. The petitioner had appropriately explained the delay in filing the appeal. Unfortunately, by glossing over the reasons for delay and the medical documents, the appellate authority had rejected the appeal.
Mr. Ray, learned Government Pleader enters appearance on behalf of the State respondents.
Heard the learned advocates appearing on behalf of the respective parties and considered the materials on record.
In this case it is noticed that despite there being an application for condonation of delay, the appellate authority by glossing over the 3 same had purported to reject the appeal on the ground that the appeal was delayed by more than 4 months. From the order impugned it would appear that the appellate authority despite acknowledging the fact that the main reason for delay in filing the appeal was due to medical treatment and by placing reliance on the provisions of Section 107(4) of the said Act, by observing the petitioner having filed the appeal beyond the time prescribed, had dismissed the same. The aforesaid order not only appears to be mechanical but contrary to the repetitive directives issued by this Court in the case of Mukul Islam v. The Assistant Commissioner of Revenue, State Tax Cooch Behar range & Ors. (WPA 917 of 2024) as also by the Hon’ble Division Bench of this Court in the case of S.K.Chakraborty & Sons versus Union of India1. 8. It is elementary that when an application for condonation of delay is filed, the appellate authority is obliged to consider the same. Unfortunately, in this case the appellate authority, despite acknowledging the fact that the reason for delay was the medical treatment of the petitioner and by holding that the appeal had been filed beyond the time prescribed as provided for in Section 107(4) of the said Act, had been pleased to reject the same. In my view, the aforesaid order is perverse to say the least and based on complete non application of mind. The same is accordingly set aside. I find that the petitioner has been able to sufficiently explain the delay in filing the appeal. 1 (2024) 123 GSTR 229
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Having regard to the aforesaid and by condoning the delay in preferring the appeal, I direct the appellate authority to hear out and dispose of the appeal on merits upon giving opportunity of hearing to the petitioner, within a period of 8 weeks from the date of communication of this order.
With the above directions and observations, the writ petition being WPA 12141 of 2024 is disposed of.
There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be made available to the parties upon compliance of necessary formalities.
(Raja Basu Chowdhury, J.) Saswata (AR)
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.