Suresh Ganguli vs. Assistant Commissioner , State Tax , Purulia Charge And Ors
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The appellant, Suresh Ganguli, filed an intra-Court appeal against an order dated December 20, 2022, passed by a learned Single Judge. The Single Judge had dismissed the appellant's writ petition, which challenged an order by the Senior Joint Commissioner of Commercial Taxes, Asansol Circle. The appellate authority, exercising powers under Section 107 of the GST Act read with Rule 108 of the GST Rules, had dismissed the appellant's appeal on the grounds that it was barred by limitation. The revenue contended that the writ court cannot extend the statutory outer time limit for condonation of delay by applying Section 5 of the Limitation Act.
Held
The Court found no error in the order passed by the appellate authority in rejecting the appeal as time-barred, acknowledging the well-settled legal position that statutory outer time limits for condonation of delay cannot be extended by applying Section 5 of the Limitation Act. However, considering the peculiar facts and circumstances, the Court decided to take a different approach to ensure the appellant's registration could be revived and to facilitate tax collection. The Assessing Officer was directed to verify if the assessee had filed all returns for the financial year 2021 onwards and paid the taxes along with applicable interest for belated payments. If these conditions were met and no other legal impediment existed, the assessee's registration was to be restored within 15 days of receiving the order. This direction was explicitly stated not to be treated as a precedent.
Key Issues
1. Whether the learned writ court was entitled to extend the statutory outer time limit for condonation of delay in filing appeals by applying Section 5 of the Limitation Act, contrary to the well-settled law on the subject? Petitioner's argument: The appellant's primary contention, as implied by the court's eventual direction, was that despite the delay, there were grounds for relief, possibly related to the filing of returns and payment of taxes. Revenue's argument: The revenue argued that the law is well-settled that if a statute prescribes an outer time limit for condonation of delay, the writ court cannot extend such period by applying Section 5 of the Limitation Act.
Sections Cited
Section 107, Rule 108
AI-generated summary — verify with the full judgment below
Item no. 07 IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURI ICTION
APPELLATE SIDE Present: The Hon’ble Justice T.S. Sivagnanam And The Hon’ble Justice Hiranmay Bhattacharyya
MAT 43 of 2023 with IA No. CAN 1 of 2023
Suresh Ganguli vs. Assistant Commmissioner, State Tax, Purulia Charge & ors. Appearance: For the Appellant : Mr. Sumit Ghosh Mr. Souradeep Majumdar For the State : Mr. A. Ray Mr. T. M. Siddiqui Mr. D. Ghosh Mr. N. Chatterjee Heard on : 17.02.2023 Judgment on : 17.02.2023 T.S. Sivagnanam J.: 1) This intra Court appeal is directed against the order dated 20.12.2022 passed by the learned Single Judge in WPA 27800/2022. The said writ petition was filed by the appellant challenging the order passed by the Senior Joint Commissioner of Commercial Taxes, Asansol Circle, who is the appellate authority who exercised powers under Section 107 of the GST Act read with Rule 108 of the GST Rules. The appeal was dismissed on the ground that it is barred by limitation. As rightly pointed out by the learned Government Counsel, the law on the subject is well settled that if the statute prescribes an outer time limit for condonation of delay in filing appeals, then the learned writ Court is not entitled to extend such period by applying Section 5 of the Limitation Act. 2) Therefore, we find that there is no error in the order passed by the appellate authority in rejecting the appeal as time barred. However, considering the peculiar facts and circumstances of the case, we feel that a slightly different approach can be taken so that not only the appellant would be entitled to get his registration revived but it will also enure in favour of the revenue as it will pave the way for collection of taxes. Therefore, we are inclined to pass the following order making it clear that this order shall not be treated as a precedent and it has been passed considering the peculiar facts and circumstances of the case. 3) In the result, the appeal stands disposed of by directing the assessee to take note of the fact that the assessee has filed all the returns during the Financial Year 2021 onwards and according to the assessee, the taxes have been paid alongwith the interest for the belated payment of tax. The Assessing Officer is directed to verify all the facts and if the assessee has filed all the returns for all the relevant periods, paid the taxes as well as the interest for the belated payment of taxes, 2
then if there is no other legal impediment, the registration of the assessee shall be restored. This direction shall be complied with by the Assessing Officer within a period of 15 days from the date of receipt of the server copy of this order. 4) Consequently, the connected application also stands disposed of. There shall, however, be no order as to costs. 5) Urgent certified photostat copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(T. S. Sivagnanam, J.) (Hiranmay Bhattacharyya, J.) Pallab/Amitava (AR. CT.) 3
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.