S.K. Enterprise vs. Commissioner Of Commercial Taxes And Ors.
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The petitioner, S.K. Enterprise, filed a writ petition challenging an order dated February 27, 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 dispute arose from an order passed under Section 54 of the Act concerning a refund of Input Tax Credit (ITC) for the tax period November 2022 to January 2023, which was issued on May 15, 2023. The petitioner's appeal from this order, filed on September 16, 2023, was delayed. The petitioner sought condonation of this delay, citing illness. The appellate authority rejected the appeal, stating it could only condone delays up to one month beyond the prescribed period.
Held
The Court held that the appellate authority had failed to exercise the jurisdiction vested in it by rejecting the appeal solely on the ground of limitation without appropriately considering the grounds for condonation of delay. The Court noted that there was a delay of only 01 day in filing the appeal, and the petitioner, being a small businessman, had shown no lack of bona fide. The Court found the appellate authority's observation that it could only condone delays within one month of the prescribed period to be contrary to the observations made by the Division Bench of the same Court in S. K. Chakaraborty & Sons v. Union of India & Ors. Therefore, the Court condoned the delay in preferring the appeal. The Court directed the appellate authority to hear and dispose of the appeal on its merits within 12 weeks of the order's communication, providing an opportunity of hearing to the petitioner. No issue was expressly left undecided.
Key Issues
1. Whether the appellate authority erred in rejecting the petitioner's appeal on the ground of limitation, despite a prayer for condonation of delay, under Section 107 of the Central/West Bengal Goods and Services Tax Act, 2017? Petitioner's arguments: The petitioner contended that the appellate authority's order was perverse as it failed to appropriately consider the grounds for condonation of delay. They argued that the appellate authority's view that it could only condone delays within one month of the prescribed period was incorrect. The petitioner relied on the case of S. K. Chakaraborty & Sons v. Union of India & Ors. to support their claim that the appellate authority had failed to exercise its vested jurisdiction. Revenue's arguments: The State-respondents were represented by learned advocates. The judgment does not explicitly record specific arguments made by the State-respondents regarding the limitation issue or the condonation of delay.
Sections Cited
Section 107, Section 54
AI-generated summary — verify with the full judgment below
3 jks 13.02.2025 WPA 30487 of 2024
S.K. Enterprise Vs. Commissioner of Commercial Taxes & Ors.
Mr. Debasish Ghosh Mr. Lalit Baid Ms. Sudeshna Ghosh Ms. Sanjana Shaw … … for the petitioner Mr. A. Ray Md. T.M. Siddiqui Ms. S. Shaw Mr. T. Chakraborty Mr. S. Sanyal … … for the State
The present writ petition has been filed, inter allia, challenging the order dated 27th February, 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 refund of account of ITC initiated under Section 54 of the said Act, for the tax period November, 2022 to January, 2023 an order under Section 54 of the said Act was passed on 15th May, 2023. Although, the petitioner preferred an appeal from the aforesaid order dated 16th September, 2023, there had been delay in filing of the appeal. In such circumstance, the petitioner had explained the delay in preferring the appeal. According to the petitioner, the appellate authority without appropriately taking note of the
2 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 a period of one month beyond the time prescribed. He submits that the aforesaid order is perverse. In light of the facts of the 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 54 of the said Act. 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 illness of the appellant there had been a delay in filing the appeal. There appears to be a delay of 01 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 grounds for condonation of delay filed by the petitioner.
3
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 a period of one month from 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. The aforesaid would demonstrate that the appellate authority failed to exercise the juri iction vested in it. Having regard to the above and taking note of the explanations, provided by the petitioner while setting aside the order dated 27th February, 2024, I condone 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 12 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.
(Rajarshi Bharadwaj, 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.