Sukanta Pal vs. Deputy Commissioner Of State Tax, Bally Charge And Others
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The petitioner, Sukanta Pal, filed a writ petition challenging an order dated April 30, 2024, passed by the appellate authority under Section 107 of the Central/West Bengal Goods and Services Tax Act, 2017. The appeal was rejected for being barred by limitation. The original order under Section 73(9) of the Act was passed on October 31, 2023, for the tax period July 2017 to March 2018. The petitioner filed an appeal and made a pre-deposit of Rs. 63,278/- as required by Section 107(6). A delay of 66 days occurred in filing the appeal, for which the petitioner submitted an application for condonation, citing lack of proper knowledge of the GST portal. The petitioner argued that the appellate authority rejected the appeal without properly considering the grounds for condonation and that the authority's competence to condone delay was limited to one month beyond the prescribed time, which the petitioner deemed perverse.
Held
The Court held that the appellate authority had failed to exercise the jurisdiction vested in it. The Court found that the petitioner had acted bona fide in preferring the appeal, having made the required pre-deposit of Rs. 63,278/- simultaneously with filing the appeal. The Court noted that the delay was 66 days and the petitioner had provided reasons for the delay, including lack of proper knowledge of the GST portal. The Court observed that the appellate authority's rejection of the appeal on the ground of limitation, by holding that delay could only be condoned if filed within one month of the prescribed time, ran counter to the observations made by a Division Bench of the same Court in S. K. Chakaraborty & Sons v. Union of India & Ors. The Court, therefore, condoned the delay in preferring the appeal. The Court directed the appellate authority to hear and dispose of the appeal on its merits after providing an opportunity of hearing to the petitioner within eight weeks from the communication of the order. The issue of the merits of the original appeal was expressly left undecided.
Key Issues
1. Whether the appellate authority erred in rejecting the appeal solely on the ground of limitation, without appropriately considering the petitioner's application for condonation of delay, particularly when the delay was 66 days and the petitioner claimed lack of proper knowledge of the GST portal? (Question of law and mixed fact and law, concerning Section 107 of the CGST/WBGST Act, 2017). Petitioner's Arguments: The petitioner contended that the appellate authority's order was perverse, as it failed to properly consider the grounds for condonation of delay. The petitioner argued that the appellate authority's view that it could only condone delay up to one month beyond the prescribed period was incorrect. The petitioner relied on the case of S. K. Chakaraborty & Sons v. Union of India & Ors., 2023 SCC Online Cal 4759, to support their contention that the appellate authority had failed to exercise its vested jurisdiction. Revenue/State's Arguments: No specific arguments were recorded for the State-respondents in the judgment.
Sections Cited
Section 107, Section 73, Section 73(9), Section 107(6)
AI-generated summary — verify with the full judgment below
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURI ICTION APPELLATE SIDE Present:
The Hon’ble Justice Raja Basu Chowdhury WPA 13858 of 2024
Sukanta Pal Versus The Deputy Commissioner of State Tax, Bally Charge, & Ors.
For the petitioner
: Mr. Debanjan Basu Thakur
For the State
: Mr. Anirban Ray
Mr. T. M. Siddiqui
Mr. Tanoy Chakraborty
Mr. Debraj Sahu
Heard on
: 10th July, 2024
Judgment on
: 10th July, 2024
Raja Basu Chowdhury, J: 1. the present writ petition has been filed, inter allia, challenging the order dated 30th April, 2024, passed by the appellate authority under Section 107 of the Central/West Bengal Goods and Services Tax Act, 2017 (hereinafter referred to as the “said Act”), whereby the petitioner’s appeal had been rejected on the ground that the same was barred by limitation. The facts are not in dispute. In connection with a proceeding initiated under Section 73 of the said Act, for the tax period July, 2017 to March, 2018
2
an order under Section 73(9) of the said Act was passed on 31st October, 2023. Although, the petitioner had preferred an appeal from the aforesaid order and simultaneously, with the filing of the appeal, had also made pre-deposit of Rs.63,278/- as is required for maintaining the appeal under the provisions of Section 107(6) of the said Act, there had been delay in filing of the appeal. In such circumstance, the petitioner had also filed an application on 3rd April, 2024 explaining the delay in preferring the appeal. According to the petitioner, the appellate authority without appropriately taking note of the grounds for condonation of delay had rejected the appeal, inter alia, on the ground that appellate authority is competent only to condone the delay provided the appeal is filed within the period of one month beyond the time prescribed. He submits that the aforesaid order is perverse. In the facts of this case this Court may be pleased to restore the appeal by condoning the delay.
Mr. Siddiqui, learned advocate enters appearance on behalf of the State-respondents.
Heard the learned advocates appearing for the respective parties and considered the materials on record. Admittedly, in this case the petitioner had filed an appeal challenging the order passed under Section 73(9) of the said Act. Simultaneously, with the filing of the appeal, the petitioner had also made pre-deposit of 3
Rs.63,278/- as is required for maintaining the appeal. As such there is no lack of bona fide on the part of the petitioner in preferring the appeal. It appears that the petitioner had also made a prayer for condonation of delay, inter alia, claiming that by reasons of lack of proper knowledge of the GST portal there had been delay in filing the appeal. There appears to be a delay of 66 days in filing the appeal.
Taking into consideration that the petitioner is a small businessman and there is no lack of bona fide on the part of the petitioner and one does not stand to gain by filing a belated appeal, I am of the view that in the instant case, the appellate authority ought to have appropriately considered the application for condonation of delay filed by the petitioner.
The appellate authority, however, appears to have rejected the appeal on the ground of limitation by, inter alia, holding that the delay can only be condoned provided the same is filed within the period of one month of the time prescribed. The aforesaid observation made by the appellate authority runs counter to the observation made by the Hon’ble Division Bench of this Court in the case of S. K. Chakaraborty & Sons v. Union of India & Ors., reported in 2023 SCC Online Cal 4759. 6. The aforesaid would demonstrate that the appellate authority had failed to exercise the juri iction vested in it. Having regard to the 4
above and taking note of the explanation give by the petitioner while setting aside the order dated 30th April 2024, I condoning the delay in preferring the appeal.
Accordingly, I direct the appellate authority to hear out and dispose of the appeal, on merit, upon giving an opportunity of hearing to the petitioner, within a period of 8 weeks from the date of communication of this order.
With the above observations and directions, the writ petition is disposed of.
There shall be no order as to costs.
All parties shall act on the basis of the server copy of this order duly downloaded from the official website of this Court.
(Raja Basu Chowdhury, J.) sb
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.