Touchwin Complex PVT. LTD. vs. Assistant Commissioner Of Revenue, Ultadanga Cossipore And Belachhia Charge And Ors.
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The petitioner, Touchwin Complex Pvt. Ltd., filed a writ petition challenging an order dated 24th November, 2023, passed by the Appellate Authority under Section 107 of the West Bengal GST/CGST Act, 2017. This order rejected the petitioner's appeal, which was filed against an order dated 22nd June, 2023, determining a tax liability of Rs. 2,95,142/-. The initial proceedings under Section 73 of the Act were initiated for the financial year 2017-18 due to discrepancies between GSTR 3B and GSTR 2A. The petitioner had responded to the show cause notice. The appeal under Section 107 was filed belatedly, along with an application for condonation of delay supported by a medical certificate. The Appellate Authority rejected the appeal due to a delay of six days, citing Section 107(4) of the Act. The petitioner argued that the Appellate Authority mechanically rejected the appeal without considering the delay condonation application. The present writ petition was filed as the Appellate Tribunal under Section 112 was not yet constituted.
Held
The Court held that the Appellate Authority had acted in a mechanical manner by rejecting the appeal solely on the ground of being filed beyond the prescribed limitation period, without properly considering the petitioner's application for condonation of delay and the supporting documents. The Court found that the delay was marginal and sufficiently explained by the petitioner. Citing the case of S.K. Chakraborty & Sons v. Union of India & Ors., the Court noted that in the absence of a non-obstante clause rendering Section 29(2) of the Limitation Act, 1963, inapplicable, and in the absence of specific exclusion of Section 5 of the Limitation Act, 1963, it would be improper to read an implied exclusion. Therefore, the Appellate Authority is not denuded of its power to condone delay beyond one month from the prescribed period under Section 107(4) of the said Act. Consequently, the order dated 24th November, 2023, passed by the Appellate Authority was set aside. The matter was remanded back to the Appellate Authority for deciding the appeal on merits after condoning the delay, with a direction to provide an opportunity of hearing to the petitioner. The disposal of the appeal was to be completed within eight weeks from the communication of the order.
Key Issues
1. Whether the Appellate Authority erred in mechanically rejecting the petitioner's appeal without considering the application for condonation of delay, thereby violating the petitioner's statutory right to appeal under Section 107 of the said Act? Petitioner's arguments: The petitioner contended that the Appellate Authority had mechanically disposed of the appeal without considering the application for condonation of delay and the supporting documents. They argued that the delay was marginal and sufficiently explained, and therefore, the Appellate Authority should have condoned the delay and heard the appeal on merits. The petitioner relied on the principle that in the absence of specific exclusion, Section 5 of the Limitation Act, 1963, should be applicable for condoning delays beyond the prescribed period. Revenue/State's arguments: The judgment does not record any specific arguments made by the respondents (Assistant Commissioner of Revenue and others).
Sections Cited
Section 73, Section 107, Section 107(4), Section 112
AI-generated summary — verify with the full judgment below
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURI ICION APPELLATE SIDE Present:
The Hon’ble Justice Raja Basu Chowdhury
W.P.A 11464 of 2024 Touchwin Complex Pvt. Ltd.
Vs. Assistant Commissioner of Revenue, Ultadanga Cossipore & Belgachhia Charge and others
For the petitioner
: Mr. Souradeep Majumdar
For the State
: Mr. Anirban Ray Md. T.M. Siddiqui Mr. Tanoy Chakraborty Mr. Saptak Sanyal
For the CGST authority : Mr. K.K. Maiti Ms. Aishwarya Rajyashree
Heard on
: 2nd July, 2024
Judgment on
: 2nd July, 2024
Raja Basu Chowdhury, J:
The present writ petition has been filed, inter alia, challenging the order dated 22nd June, 2023 passed by the Appellate Authority under Section 107 of the West Bengal GST/CGST Act, 2017 (hereinafter referred to as ‘the said Act’).
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Records reveal that the proceedings under Section 73 of the said Act was initiated in respect of the financial year 2017-18, vide a show cause notice dated 2nd February, 2023 concerning mismatch/discrepancy between GSTR 3B and GSTR 2A. Although, it is the petitioner’s case that the petitioner had duly responded to the said show cause and had tried to explain the discrepancies, notwithstanding the aforesaid by an order dated 22nd June, 2023 the proper officer had determined the liability of the petitioner to the extent of Rs.2,95,142/- on account of tax.
Being aggrieved with the aforesaid determination, an appeal was filed under Section 107 of the said Act along with pre-deposit as is required to maintain the said appeal.
Since such appeal was filed belatedly, an application, inter alia, praying for condonation of delay was also filed. A medical certificate in support of such application for condonation of delay was also placed on record.
The records reveal that Appellate Authority by its order dated 24th November, 2023 by recording that there is a delay of six days and the appeal having been filed beyond the time prescribed as provided for in Section 107(4) of the said Act was, inter alia, pleased to reject the same.
Being aggrieved in the present writ petition has been filed.
Although, the statutory remedy in the form of an appeal from an order passed under Section 107 of the said Act is provided for,
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however, since the Appellate Tribunal under Section 112 of the said Act, is yet to be constituted, the present writ petition has been filed.
It is submitted that the Appellate Authority had mechanically disposed of the said appeal without considering the petitioner’s application for condonation of delay.
The learned Advocate representing the petitioner submits that in the facts noted hereinabove that this court may be pleased to set aside the order dated 24th November, 2023 and by condoning the delay in preferring the appeal, may direct the Appellate Authority to hear out the same.
Mr. Sanyal, learned Advocate enters appearance on behalf of the respondents.
Heard learned Advocates appearing for the parties and considered the materials on record. In this case it has been noticed that there is a statutory right of the Registered Tax Payer (RTP) to prefer an appeal from an order of adjudication passed under Section 73(9) of the said Act.
Admittedly, the petitioner had exercised its statutory right and had filed the appeal along with the pre-deposit as is required for maintaining the appeal. Factum of payment of such pre-deposit would corroborate from the Form GST APL-01. It appears that in filing the appeal there was some delay.
The petitioner had duly filed an application on 27th October, 2023 explaining the delay. Supporting documents to corroborate the 4
explanation given by the petitioner were also annexed to the application for condonation of delay.
I find that the delay is only marginal.
Upon perusal of the application for condonation of delay, it appears that the petitioner had been able to appropriately explain the delay in filing the aforesaid appeal.
The powers of the Appellate Authority to condone the delay beyond one month from the time prescribed had duly been considered in the case of S.K. Chakraborty & Sons v. Union of India & Ors., reported in (2023) SCC Online Cal 4759. It has been held that in absence of non obstante clause rendering Section 29(2) of the Limitation Act, 1963, non applicable and in absence of specific exclusion of Section 5 of the Limitation Act, 1963, it would be improper to read implied exclusion thereof. As such, the appellate authority is not denude of its power to condone the delay beyond one month from the prescribed period of limitation as provided for in Section 107(4) of the said Act.
Having regard to the aforesaid, I am of the view that the Appellate Authority had acted in a mechanical manner in purporting to reject
the appeal on the ground that the same was filed beyond the period of limitation prescribed for filing of an appeal, by glossing over the explanation for the delay.
In view thereof, the order dated 24th November, 2023 cannot be sustained, the same is accordingly set aside.
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Since, the explanation offered by the petitioner is found to be sufficient, while condoning the delay, I remand the matter back to the Appellate Authority for deciding the matter on merits by giving an opportunity of hearing to the petitioner of being heard.
The aforesaid process of disposal of the appeal shall be completed within a period of eight weeks from the date of communication of this order.
With the aforesaid directions, writ petition stands 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 with the necessary formalities.
(Raja Basu Chowdhury, J.) AK
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.