Commissioner Of State Taxes Jammu And Kashmir Govt Excise And Taxation And Others vs. M/S 92.7 Fm And Another

Held

The Court held that the learned Tribunal correctly dismissed the petition for condonation of delay. The Court interpreted Section 12(D) of the J&K GST Act, 1962, along with its first proviso, to mean that the maximum period for filing an application for reference to the High Court is 90 days from the communication of the Tribunal's appellate order. The Court noted that the appellate order was communicated on 29.02.2022. Therefore, the reference application should have been filed by 29.04.2022 (60 days) or by 29.05.2022 (including the 30-day grace period, subject to sufficient cause). Since the application was filed on 14.11.2019, it was clearly barred by limitation under Section 12(D). The Court further clarified that Section 12(B) of the GST Act, 1962, applies to appeals and revisions, but does not extend to the filing of references under Section 12(D). Consequently, the judgments cited by the petitioners, which relied on the applicability of Section 5 of the Limitation Act, were deemed not applicable to this case. The order of the appellate authority had attained finality.

Facts

The petitioners, the Commissioner State Taxes and others, are challenging an order dated 22.12.2020 passed by the Chairman, Jammu & Kashmir Sales Tax (Appellate) Tribunal. This order dismissed the petitioners' petition for condonation of delay and, consequently, their petition seeking reference of questions of law. The dispute originated from the Assessing Authority's demand of sales tax, interest, and penalty from respondent M/s. 92.7 FM for the accounting years 2007-08 and 2008-09, on the grounds that their advertisement broadcasting activity was exigible to tax. The respondent's appeals to the Deputy Commissioner (Appeals) were dismissed, but the Sales Tax Tribunal accepted their appeals. The High Court had previously directed the petitioners to file an application for reference of law within three weeks, excluding the period spent in High Court proceedings for limitation calculation. The petitioners filed this application on 14.11.2019.

Key Issues

1. Whether the learned Tribunal erred in dismissing the petition for condonation of delay on the grounds of limitation, by not considering the provisions of Section 12-B of the J&K GST Act, 1962, which mandates the application of Sections 5 and 12 of the Limitation Act, Samvat 1995, to appeals and revisions filed before appellate authorities and tribunals? (Question of law) Contentions: Petitioner (Department): The learned Tribunal failed to consider Section 12-B of the J&K GST Act, 1962, making its order unsustainable. The delay was sufficiently explained in the application for condonation. Respondent (92.7 FM): The learned Tribunal has the power to condone delay but not beyond 90 days (including the extended period of 30 days) in the absence of Section 5 of the Limitation Act's applicability. The petition for reference was barred by limitation, and the Tribunal rightly dismissed the condonation application.