Akash Jana vs. State Of West Bengal And Ors.
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The petitioner, Akash Jana, challenged an order dated October 28, 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 April 19, 2024, for the tax period April 2018 to March 2019. The petitioner filed an appeal and made the mandatory pre-deposit of Rs. 43,490/-. A delay of 5 days occurred in filing the appeal, for which the petitioner submitted an application for condonation on August 23, 2024, citing illness. The petitioner contended that the appellate authority rejected the appeal without properly considering the grounds for condonation, particularly misinterpreting its power to condone delay.
Held
The Court held that the appellate authority had failed to exercise the jurisdiction vested in it. The Court noted that the petitioner had filed the appeal and made the pre-deposit, indicating no lack of bona fide. The delay was a mere 5 days, attributed to illness. The Court found the appellate authority's observation that delay could only be condoned if the appeal was filed within one month beyond the prescribed time to be contrary to the observations made by the Division Bench of the same High Court in S. K. Chakaraborty & Sons v. Union of India & Ors. (2023 SCC Online Cal 4759). Consequently, 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 8 weeks of the order's communication, after providing the petitioner an opportunity of hearing. The order dated October 28, 2024, was set aside.
Key Issues
1. Whether the appellate authority erred in rejecting the petitioner's appeal solely on the ground of limitation, despite a prayer for condonation of delay supported by grounds of illness, and whether the appellate authority's interpretation of its power to condone delay was legally sound? Petitioner's arguments: The petitioner argued that the appellate authority's order was perverse. The petitioner contended that the appellate authority failed to appropriately consider the grounds for condonation of delay. Specifically, the petitioner argued that the appellate authority's view that it could only condone delay within one month beyond the prescribed time was incorrect. The petitioner sought restoration of the appeal by condoning the delay. Revenue's arguments: The State-respondents did not record any specific arguments against the petitioner's claim for condonation of delay or the merits of the appeal itself in the judgment.
Sections Cited
Section 107, Section 73, Section 73(9), Section 107(6)
AI-generated summary — verify with the full judgment below
8 jks 17.01.2025 WPA 28984 of 2024 Akash Jana Vs. State of West Bengal & Ors. Mr. Rajarshi Chatterjee … … for the petitioner Mr. A. Ray Md. T.M. Siddiqui Mr. N. Chatterjee Mr. T. Chakraborty Mr. S. Sanyal Mr. D. Sahu … … for the State The present writ petition has been filed, inter allia, challenging the order dated 28th October, 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 April, 2018 to March, 2019 an order under Section 73(9) of the said Act was passed on 19th April, 2024. 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.43,490/- 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 23rd August, 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 Rs.43,490/- 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, on account of illness. There appears to be a delay of 05 days in filing the appeal. 2
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. 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 28th October, 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. 3
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.) 4
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.