Case Law Details
In re Sairam Gopalkrishna Bhat (GST AAAR Karnataka)
The proviso to Section 100(2) empowers this Authority to condone a further delay of 30 days if it is satisfied that the Appellant was prevented by sufficient cause from filing the appeal within the prescribed period of 30 days. This grace period which is available to the Appellant for filing the appeal and which is condonable by us expires on 20-04-2022 in the case of Situation 1 of above Table and on 29-04-2022 in the case of Situation 2 of the above Table. The appeal in this case, has been filed on 26.05.2022 which is 36 days after the expiry of the grace period in the case of Situation 1 and 27 days after the expiry of the grace period in the case of Situation 2. In both situations the delay is beyond the condonable powers of the Appellate Authority. The question whether this Appellate Authority can entertain an appeal under Section 100 of the CGST Act beyond the condonable period does not require much debate and has been answered in the negative by the Supreme Court in the case of Singh Enterprises vs CCE reported in (2008) 3 SCC 70. The Supreme Court in the said case interpreted Section 35 of the Central Excise Act, 1944 which is similar to Section 100 of the CGST Act and examined the question whether the Commissioner (Appeals) has the power to condone the delay beyond the period of 30 days from the date of expiry of the period prescribed for filing the statutory appeal and also whether the High Court, in exercise of the power conferred under Article 226 of the Constitution of India, can condone the delay. The Hon’ble Supreme Court in Para 8 of its order held that the proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the condonable period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal.
We are also not empowered to condone the delay beyond the prescribed period by invoking the provisions of Section 5 of the Limitation Act, 1963. The said Section 5 gives an opportunity to a litigant to file applications beyond the prescribed period of limitation provided, he is able to establish that he was prevented by sufficient cause from approaching the Court within the said period. However, when any special statute prescribes certain period of limitation as well as provision for extension up to specified time limit, on sufficient cause being shown, then the period of limitation prescribed under the special law shall prevail, and to that extent the provisions of the Limitation Act shall stand excluded. The Supreme Court in the case of Kiren Enterprise vs State of Tripura – 2021 (52) GSTL 29 (Tripura), while examining whether the Superintendent of State Tax had the authority to condone the delay beyond the period of six months under Section 161 of the TSGST Act for rectifying the defects or errors, has held that Section 161 of the TSGST Act is a complete code in itself and it has impliedly excluded the Limitation Act. The Hon’ble Supreme Court has also held that the Limitation Act will not apply automatically unless it is extended to the special statute such as TSGST Act. Further, in the case of Commissioner of Customs and Central Excise vs Hongo India (P) Ltd – (2009) 5 SCC 791, the Hon’ble Supreme Court considered the question whether Section 5 of the Limitation Act can be invoked for condonation of delay in filing an appeal or reference to the High Court under the Central Excise Act and observed that the scheme of the Central Excise Act, 1944 supports the conclusion that the time limit prescribed under Section 35H(1) to make a reference to High Court is absolute and unextendible by court under Section 5 of the Limitation Act. It is well settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act
In view of the above settled legal position, it is evident that this Appellate Authority being a creature of the statute is empowered to condone a delay of only a period of 30 days after the expiry of the initial period for filing appeal. As far as the language of the proviso to Section 100 (2) of the CGST Act is concerned, the crucial words are “not exceeding thirty days”. To hold that this Appellate Authority could entertain this appeal beyond the extended period under the proviso would render the phrase “not exceeding thirty days” wholly otiose. No principle of interpretation would justify such a result. Therefore, we hold that we are not empowered to condone the delay of 27 days beyond the condonable period, in filing this appeal.
FULL TEXT OF THE ORDER OF AUTHORITY FOR APPELLATE ADVANCE RULING, KARNATAKA
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