Kajal Dutta vs. Assistant Commissioner Of Tax , Suri Charge And Ors
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The appellant, Kajal Dutta, filed an intra-Court appeal against an order dated November 18, 2022, passed by a learned Single Bench in a writ petition. The writ petition had challenged an order dated August 17, 2022, by the Senior Joint Commissioner of Commercial Taxes, Durgapur Circle. The appellate authority had dismissed the appellant's appeal on the grounds of limitation. The appellant claimed illness prevented timely filing, supported by a doctor's certificate. The revenue did not dispute the illness but pointed out that the appeal was filed on August 17, 2022, beyond the statutory three-month period plus a one-month grace period, which expired on June 30, 2022. The appellant had complied with the mandatory pre-deposit of 10% of the disputed tax.
Held
The Court held that while Section 107(1) read with Section 107(4) of the GST Act, 2017, provides a statutory period of three months for filing an appeal with a grace period of 30 days, the statute does not preclude the appellate authority from exercising jurisdiction beyond this period in exceptional circumstances. The Court found that the appellant's inability to file the appeal was due to illness, not deliberate delay. Exercising discretion under Article 226 of the Constitution, the Court deemed it appropriate to condone the delay, recognizing the appellate remedy as valuable for re-appreciating factual positions. The Court set aside the order of the learned Single Bench and the appellate authority, condoned the delay, and directed the appellate authority to decide the appeal on merits after affording an opportunity of personal hearing. The Court explicitly stated that this order would not serve as a precedent. Additionally, considering the initiation of garnishee proceedings and attachment of the bank account, the Court directed that no coercive action should be taken until the appeal is disposed of, granting liberty to the appellant to file an interim application for lifting the garnishee order.
Key Issues
1. Whether the High Court, exercising its writ jurisdiction under Article 226 of the Constitution, can condone the delay in filing an appeal before the appellate authority under the GST Act, 2017, when the delay extends beyond the statutory grace period, considering the peculiar facts and circumstances of the case? Petitioner's arguments: The appellant contended that illness prevented them from filing the appeal within the prescribed time, supported by medical evidence. They argued that the appellate remedy is valuable and should not be denied due to circumstances beyond their control, especially when the delay was not deliberate. Revenue's arguments: The revenue argued that the appeal was filed beyond the statutory period of three months plus the one-month grace period provided under Section 107(1) read with Section 107(4) of the GST Act, 2017, and therefore, it was barred by limitation. They did not dispute the fact of illness but emphasized the statutory time limits.
Sections Cited
Section 107(1), Section 107(4)
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Cause title — parties, addresses and appearances
JUDGMENT (Judgment of the Court was delivered by T.S. SIVAGNANAM, J.)
This intra-Court appeal filed by the writ petitioner is directed against the order dated 18th November, 2022 passed by the learned Single Bench in W.P.A. No.22764 of 2022. In the said writ petition, the appellant had challenged the correctness of the order passed by the Senior Joint Commissioner of Commercial Taxes, Durgapur Circle dated 17th August, 2022, who is the appellate authority under the provisions of the GST Act, 2017 read with the GST Rules. The appeal had been dismissed on the ground of limitation. The learned Single Bench declined to interfere with the said order and challenging the correctness of the order passed in the writ petition, the appellant had filed the present appeal.
On perusal of the affidavit filed in support of the writ petition as well as the documents annexed to the stay application, we find that the appellant could not present the appeal on account of illness for which a doctor’s certificate has also been enclosed.
The correctness of the stand taken by the appellant that he was sick and unable to take steps to file the appeal within the period of limitation is not disputed by the revenue. However, the appellate authority was of the opinion that the period of 2
one month beyond the statutory period of limitation is available to the said authority, which expired on 30th June, 2022 and the appeal was presented only on 17th August, 2022 and therefore, the appeal is barred by the law of limitation. It is true that in terms of Section 107(1) read with Section 107(4) of the G.S.T. Act, the time limit for preferring the appeal beyond the period of three months is 30 days, which is a grace period. However, the statute does not state that beyond the said date, the appellate authority cannot exercise juri iction. It is not a case that deliberately the appellant had presented the appeal beyond the condonable period. Therefore, while exercising juri iction under Article 226 of the Constitution this Court can examine the factual circumstances and grant appropriate relief as the appellate remedy is a very valuable remedy since the appellate authority can re-appreciate the factual position. Thus, for such reason, we are inclined to exercise discretion.
In the result, the appeal is allowed, the order passed in the writ petition is set aside and consequently, the writ petition is allowed and the order passed by the appellate authority dated 17th August, 2022 is set aside and the delay in filing the appeal before the appellate authority is condoned and the appellate authority is directed to consider and decide the 3
appeal on merits in accordance with law after affording opportunity of personal hearing to the authorised representative of the appellant.
We make it clear that this order shall not be treated as a precedent and has been passed considering the peculiar facts and circumstances of the case.
The learned Advocate appearing for the appellant submitted that garnishee proceedings have been initiated by the authorities by way of attachment of the appellant’s bank account.
When the appeal was presented, the mandatory pre-deposit of 10% of the disputed tax has been complied with by the appellant. If that be so, no coercive action should be taken against the appellant till the appeal is heard and disposed of. In terms of the above direction, the appellant is granted liberty to file an appropriate interim application in the appeal petition and the appellate authority shall consider the same and pass appropriate orders for the purpose of lifting the garnishee order and the bank attachment. The appellant shall file the application in the statutory appeal not later than 10th February, 2023. 8. There shall be no order as to costs. 4
Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously upon compliance of all legal formalities.
(T.S. SIVAGNANAM, J) I agree,
(HIRANMAY BHATTACHARYYA, J.)
NAREN/PALLAB(AR.C) 5
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.