M/S. Bina Medico And Anr. vs. State Of West Bengal And Ors.
Original PDF →Facts
The petitioners, M/s. Bina Medico & Anr., filed a writ petition challenging an order dated 27th June, 2024, passed by the appellate authority under Section 107 of the Goods and Services Tax Act, 2017. This order rejected their appeal solely on the grounds of delay. The original order, passed by the proper officer under Section 73(9) on 17th December, 2023, raised a demand against the petitioners. The petitioners filed an appeal against this demand, made the required pre-deposit, and also applied for condonation of delay. The appellate authority issued a show cause notice regarding the delay. However, the petitioners or their authorized representative failed to appear before the appellate authority, leading to the rejection of the appeal. The petitioners claim a delay of only 8 days and state that an appropriate explanation was provided.
Held
The Court held that the matter ought to be remanded back to the appellate authority for a decision on merits. The Court noted that there was a marginal delay in filing the appeal and that some explanation was available for the delay. It was also observed that the petitioners were compelled to approach the High Court due to the non-constitution of the Appellate Tribunal, and the appeal had not been adjudicated on merits. Consequently, the order dated 27th June, 2024, passed by the appellate authority was set aside. The Court directed the appellate authority to hear the appeal on merits after giving the petitioners an opportunity of hearing, subject to the petitioners paying a cost of Rs. 5000/- to the Bar Association Benevolent Fund within two weeks. The petitioners are to produce the receipt of payment before the appellate authority.
Key Issues
1. Whether the appellate authority erred in rejecting the appeal on the ground of delay without considering the explanation provided by the petitioners, contrary to the principles of natural justice, under Section 107 of the Goods and Services Tax Act, 2017? Petitioner's contention: The petitioners argued that there was a marginal delay of only 8 days in filing the appeal and that an appropriate explanation for this delay was provided. They contended that the appellate authority overlooked this explanation and rejected the appeal without proper consideration. Revenue's contention: The State, represented by the learned Senior Advocate, submitted that the appeal was admittedly barred by limitation. They further argued that although a show cause notice was issued regarding the delay, the petitioners failed to appear or provide any explanation. Therefore, they contended that the appellate authority's order rejecting the appeal was not irregular and no interference was warranted.
Sections Cited
Section 107, Section 73(9)
AI-generated summary — verify with the full judgment below
11 19.02.2025 Sb/sk Ct 5
IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURI ICTION APPELLATE SIDE
WPA 31064 of 2024
M/s. Bina Medico & Anr. Versus The State of West Bengal & Ors.
Mr. S. P. Dalapati
Mr. Sudhakar Thakur
Mr. Asumdipta Santra
… For the petitioners.
Mr. Anirban Ray, Ld. GP,
Mr. T. M. Siddiqui, Sr. Advocate,
Mr. Tanoy Chakraborty
Ms. Sumita Shaw
Mr. Saptak Sanyal
… For the State.
Affidavit of service filed in Court today is taken on record.
Challenging the order dated 27th June, 2024 passed by the appellate authority under Section 107 of the West Bengal/Central Goods and Services Tax Act, 2017 (hereinafter referred to as the “said Act”), rejecting the appeal filed by the petitioners on the ground of delay, the instant writ petition has been filed.
The records would reveal that on the basis of a show- cause notice issued on the petitioners, the proper officer had passed an order under Section 73(9) of the said Act on 17th December, 2023 and had raised a demand in Form GSTDRC-07. Challenging such order, the petitioners had preferred an appeal before the appellate
2 authority under Section 107 of the said Act. Simultaneously, with the filing of the appeal, the petitioners had duly made the pre-deposit as is required for maintaining such appeal. Since, there was a delay in filing of the appeal, the petitioners had also applied for condonation of delay. The appellate authority taking note of the delay had issued a show cause on the petitioners to explain the delay. However, since the petitioners or their authorized representative did not appear, the appellate authority by inferring that the petitioners have no reasonable explanation to offer for the delay in filing the appeal, had rejected the same.
Mr. Dalpati, learned advocate appearing on behalf of the petitioners would submit that there is a delay of only 8 days in preferring the appeal. Appropriate explanation had been provided for the delay. Unfortunately, the appellate authority by overlooking the same had rejected the application.
Mr. Siddiqui, learned Senior Advocate and Additional Government Pleader appearing on behalf of the State on the other hand would submit that admittedly in this case the appeal was barred by limitation. Although, a show cause notice was issued, the petitioners chose not to turn up or provide any explanation. Having regard thereto, there is no irregularity in the order passed by the appellate authority in rejecting the appeal. No
3 interference is called for.
Having heard the learned advocates appearing for the respective parties and having considered that there is a marginal delay in filing the aforesaid appeal and also noting that although the petitioners have a further right to prefer an appeal before the Appellate Tribunal, by reasons of the Appellate Tribunal not being constituted, the petitioners have been compelled to approach this Court. The appeal has not been adjudicated on merits.
Having regard to the peculiar facts made out and noting that some explanation is available for the delay, I am of the view that the matter ought to be remanded back to the appellate authority for a decision on merits and accordingly the order dated 27th June, 2024 passed by the appellate authority is set aside.
Subject to payment of cost of Rs.5000/- to be paid by the petitioners to the Bar Association Benevolent Fund, High Court, Calcutta, within two weeks from date, the appellate authority is directed to hear the appeal filed by the petitioners on merits upon giving an opportunity of hearing to the petitioners. The petitioners shall produce the copy of the receipt issued by the Bar Association before the appellate authority.
With the above observations and directions, the writ petition is disposed of.
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Urgent Photostat certified copy of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Raja Basu Chowdhury, J.)
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.