Frontline (Ncr) Business Solutions Private Limited And Anr. vs. State Of West Bengal And Ors.
Original PDF →Facts
The petitioners, Frontline (NCR) Business Solutions Private Limited & Anr, filed a writ petition challenging an order passed by the Joint Commissioner of Revenue, State Tax/GST, Behala Circle. This order rejected their appeal against an order dated December 28, 2023, passed by the Deputy Commissioner of State Tax, Behala Charge under section 74 of the WBGST Act, 2017. The appeal was rejected on the grounds of being barred by limitation, specifically in contravention of sub-sections (1) and (4) of section 107 of the WBGST Act, 2017. The delay in filing the appeal was approximately 30 days, attributed to the sudden demise of the professional consultant handling the case, leaving the petitioners unaware of its status.
Held
The Court held that the appellate authority was not justified in rejecting the appeal solely on the grounds of limitation. It found that the explanation provided by the petitioners for the delay, i.e., the sudden demise of their professional consultant, was acceptable. The Court relied on the observation of the Hon'ble Division Bench in S.K. Chakraborty & Sons (supra), which held that Section 5 of the Limitation Act, 1963, is attracted to Section 107 of the WBGST Act, 2017, as there is no express or implied exclusion. The Court reasoned that the prescribed period for filing an appeal, including the discretionary period, is not final, and the appellate authority has the power to extend the period for filing the appeal in given facts and circumstances. The ratio decidendi is that the appellate authority under Section 107 of the WBGST Act, 2017, has the power to condone delays beyond the prescribed time, applying Section 5 of the Limitation Act, 1963, when sufficient cause is shown. The appeal was restored to its original file and number by condoning the delay, and the appellate authority was directed to hear and dispose of the appeal on merits within four weeks.
Key Issues
1. Whether the appellate authority was justified in rejecting the appeal on the grounds of limitation, considering the provisions of Section 107 of the WBGST Act, 2017 and Section 5 of the Limitation Act, 1963? The petitioners argued that despite the delay, Section 5 of the Limitation Act, 1963, should be applied to condone the nominal delay of 30 days. They contended that the delay was occasioned by the unfortunate demise of their professional consultant, after which they were unaware of the case's status. They relied on the judgment in S.K. Chakraborty & Sons versus Union of India & Ors. (2023 SCC OnLine Cal 4759) to support their claim for condonation of delay and sought for the appeal to be heard on merits. The State-respondents argued that as per the statutory requirement under the WBGST Act, the appeal should have been preferred within three months with a possible extension of thirty days on sufficient grounds. They asserted that the appeal was filed beyond the stipulated period and therefore, the appellate authority's order was correct and did not warrant interference. They did not cite any specific provisions or precedents in their argument.
Sections Cited
Section 107, Section 74, Section 5
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
order of the appellate authority namely, Joint Commissioner of Revenue, State Tax/GST, Behala Circle, rejecting the appeal filed by the petitioners on the grounds of it being barred by limitation in contravention to the provisions of sub-sections (1) and (4) of section 107 of the WBGST Act, 2017. Mr Baisya, learned counsel appearing for the petitioners, referring to a judgement in the case of S.K. Chakraborty & Sons versus Union of India & Ors. reported in 2023 SCC OnLine Cal 4759 submits that though as per provisions of Section 107 of WBGST Act,
2 2017, there is delay yet such delay may be condoned applying Section 5 of the Limitation Act. The delay is of nominal 30 days in filing the appeal which has occasioned due to sudden demise of the professional consultant who was previously looking after the case and after his demise, the petitioners were not aware of the status of the case. He seeks for condonation of delay and sending the matter before the appellate authority to hear out the appeal and dispose of the same on merit within a stipulated time.
On the other hand, learned counsel for the State- respondents, submits that as per the statutory requirement, the appeal should have been preferred within a period of three months with an extended period of thirty days on sufficient ground been shown. However, the appeal has been filed beyond the period as stipulated under the provisions of WBGST Act. Therefore, the order passed by the appellate authority does not call for any interference. She submits for dismissal of the writ petition.
It is found from the Annexure to Form GST APL- 01 (at page 32 of the writ petition) that the delay was on the grounds of sudden demise of the professional consultant who previously looked after the case. The appeal was preferred against the order dated December 28, 2023 passed by the Deputy Commissioner of State
3 Tax, Behala Charge under section 74 of the WBGST Act, 2017. The appeal has been rejected by the appellate authority on being barred by limitation in contravention of the provisions of section 107(1) and 107(4) of the WBGST Act, 2017. Now the question which is to be examined is whether the appellate authority was right in rejecting the appeal on the ground of delay.
At this stage, it would be profitable to reproduce the observation of Hon’ble Division Bench of this court in S.K. Chakraborty & Sons (supra) at paragraph 20 as follows:–
“20. Therefore, in our view, since provisions of section 5 of the Act of 1963 have not been expressly or impliedly excluded by section 107 of the Act of 2017 by virtue of section 29(2) of the Act of 1963, section 5 of the Act of 1963 stands attracted. The prescribed period of 30 days from the date of communication of the adjudication order and the discretionary period of 30 days thereafter, aggregating to 60 days is not final and that, in given facts and circumstances of a case, the period for filing the appeal can be extended by the appellate authority.”
Bearing in mind the aforesaid decision of the Hon’ble Division Bench, there cannot be any doubt as regards the power of the appellate authority under section 107 of the WBGST Act, 2017 Act to condone the delay beyond the time prescribed. The explanation made by the petitioners is acceptable.
In the light of the above discussions, the appeal
4 is restored to its original file and number by condoning the delay.
The appellate authority is directed to hear out and dispose of the appeal on merits within a period of four weeks from the date of communication of this order, upon giving an opportunity of hearing to the petitioners.
With the above observations and directions the writ petition stands disposed of.
There shall be no order as to costs.
Learned advocate for the petitioners is directed to communicate this order to the appellate authority.
All parties are to act on the server copy of this order duly downloaded from the official website of this court.
Certified copy of this order, if applied for, shall be made available to the parties.
[Bivas Pattanayak, J]
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.