Case Law Details
Jatinder Singh Vs Union Territory of Jammu & Kashmir through Commissioner/Secretary (Jammu & Kashmir High Court)
Conclusion: Appellate authority could not condone delay beyond four months under section 107 and this discretion conferred upon the appellate authority was restricted to condoning the delay only for a maximum period of one month. Moreso, power vested in the High Court under Article 226 of the Constitution of India was extraordinary in nature and might be exercised in a particular case to ensure that the procedural laws did not cause miscarriage of justice. Assessee had not made out a case of exceptional nature as would warrant exercise of extraordinary jurisdiction vested in this Court under Article 226 of the Constitution of India to condone the delay despite their being clear prohibition to do so under Section 107(4).
Held: Assessee was registered under Jammu & Kashmir Goods and Services Tax Act, 2017 [“the Act of 2017”] under different registration numbers. They were assessed by the respective adjudicating authority under Section 73/74 of the Act of 2017 and certain demands were raised against them. Feeling dissatisfied and aggrieved by the orders passed by the adjudicating authorities, the petitioners preferred statutory appeals before the Appellate Authority under Section 107 of the Act of 2017. The appeals preferred by the petitioners-assessees were not entertained and rejected indicating the reason for rejection as “delay in submission of appeals”. Since the Government was yet to constitute Appellate Tribunal, as such, the petitioners, feeling aggrieved by rejection of their appeals, are before us invoking extraordinary writ jurisdiction vested in this Court under Article 226 of the Constitution of India. submitted that in the absence of specific exclusion of applicability of the Limitation Act, Section 29 of the Limitation Act would come into play and the Appellate Authority would be well within its power to condone the delay even beyond the period of four months by exercising its jurisdiction under Section 5 of the Limitation Act. Whether the Appellate Authority under Subsection (4) of Section 107 of the Act of 2017 is competent to condone the delay in filing an appeal against a decision or order passed under the Act by an adjudicating authority beyond a period of one months after the expiry of three months’ period prescribed for filing appeal under Subsection (1) of Section 107 of the Act of 2017. It was held that charging provisions would require literal or strict construction whereas machinery provision and the provisions for appeals and limitation period may not require strict or literal constructions. The principle always lean in favour of advancing the cause of justice where a clear case is made out for so doing, since justice and reasoning is at the heart of all legislation. this Court in the exercise of jurisdiction under Article 226 of the Constitution should not, on the drop of hat, exercise its jurisdiction under Article 226 of the Constitution of India and do something which is specifically prohibited by a statute or legislative enactment. Doing so without there being exceptional circumstances would render such statute or legislative enactment otiose. However, as stated above, the power vested in the High Court under Article 226 of the Constitution of India is extraordinary in nature and may be exercised in a particular case to ensure that the procedural laws do not cause miscarriage of justice. Assessee had not made out a case of exceptional nature as would warrant exercise of extraordinary jurisdiction vested in this Court under Article 226 of the Constitution of India to condone the delay despite their being clear prohibition to do so under Section 107(4).
FULL TEXT OF THE JUDGMENT/ORDER OF PUNJAB AND HARYANA HIGH COURT
1. The petitioners in all these petitions are dealers registered under Jammu & Kashmir Goods and Services Tax Act, 2017 [“the Act of 2017”] under different registration numbers. They were assessed by the respective adjudicating authority under Section 73/74 of the Act of 2017 and certain demands were raised against them. Feeling dissatisfied and aggrieved by the orders passed by the adjudicating authorities, the petitioners preferred statutory appeals before the Appellate Authority under Section 107 of the Act of 2017. The appeals preferred by the petitioners-assessees were not entertained and rejected indicating the reason for rejection as “delay in submission of appeals”
2. Since the Government is yet to constitute Appellate Tribunal, as such, the petitioners, feeling aggrieved by rejection of their appeals, are before us invoking extraordinary writ jurisdiction vested in this Court under Article 226 of the Constitution of India.
3. Learned Advocate General appearing for the respondents raises a preliminary objection to the maintainability of these petitions. He would argue that under Section 107 of the Act of 2017 any decision or order passed by the adjudicating authority may be appealed before the Appellate Authority within three months from the date of such decision or order and in terms of Subsection (4) of Section 107, the Appellate Authority is conferred discretion to condone delay of one month from the date of expiry of limitation period of three months prescribed under Subsection (1) of Section 107. He would, therefore, urge that the appeals preferred by the petitioners before the Appellate Authority after a gap of more than four months from the date of passing of the orders by the adjudicating authorities were patently time barred Appellate Authority committed no illegality or irregularity in rejecting such appeals.
4. Meeting the argument of the learned Advocate General, learned counsel appearing for the petitioners would submit that in the absence of specific exclusion of applicability of the Limitation Act, Section 29 of the Limitation Act would come into play and the Appellate Authority would be well within its power to condone the delay even beyond the period of four months by exercising its jurisdiction under Section 5 of the Limitation Act.
5. In view of the rival contentions and the law cited in support thereof by the learned counsel appearing on both the sides, a question of seminal importance has arisen for consideration, which reads thus:
“Whether the Appellate Authority under Subsection (4) of Section 107 of the Act of 2017 is competent to condone the delay in filing an appeal against a decision or order passed under the Act by an adjudicating authority beyond a period of one months after the expiry of three months’ period prescribed for filing appeal under Subsection (1) of Section 107 of the Act of 2017?
6. This question would bring forth the debate as to whether by the aid of Section 29 of the Limitation Act, Section 5 of the Limitation Act would be applicable to the appeals filed under Section 107 of the Act of 2017. Relevant extract of Section 107 of the Act of 2017 is reproduced hereunder:-
107. Appeals to Appellate Authority.— (1) Any person aggrieved by any decision or order passed under this Act or the Central Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person.
(2) The Commissioner may, of his own motion, or upon request from the Commissioner of central tax, call for and examine the record of any proceeding in which an adjudicating authority has passed any decision or order under this Act or the Central Goods and Services Tax Act, for the purpose of satisfying himself as to the legality or propriety of the said decision or order and may, by order, direct any officer subordinate to him to apply to the Appellate Authority within six months from the date of communication of the said decision or order for the determination of such points arising out of the said decision or order as may be specified by the Commissioner in his order.
(3) Where, in pursuance of an order under sub-section (2), the authorized officer makes an application to the Appellate Authority, such application shall be dealt with by the Appellate Authority as if it were an appeal made against the decision or order of the adjudicating authority and such authorized officer were an appellant and the provisions of this Act relating to appeals shall apply to such application.
(4) The Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or six months, as the case may be, allow it to be presented within a further period of one month.”
7. From a reading of Subsection (1) set out hereinabove, it is abundantly clear that any person, who is aggrieved by any decision or order passed under the Act of 2017 or the State GST Act by an adjudicating authority is entitled to file an appeal before the prescribed appellate authority within a period of three months from the date on which said decision or order is communicated to such person. Subsection (4) of Section 107, however, confers discretion on the appellate authority to condone the delay in filing appeal, if it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the prescribed period of three months. However, this discretion conferred upon the appellate authority is restricted to condoning the delay only for a maximum period of one month. Section 107 of the Act of 2017 is a complete Code in itself and by providing separate provision for condonation of delay, has, therefore, expressly excluded the applicability of Section 5 of the Limitation Act even by the aid of Section 29 thereof.
8. Section 29 of the Limitation Act, 1963, which was pressed into service by the learned counsel appearing for the petitioners to contend the applicability of Section 5 of the Limitation Act to the proceedings under Section 107 of the Act of 2017, reads thus:-
“29. Savings.—(1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (9 of 1872).
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.
(3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.
(4) Sections 25 and 26 and the definition of “easement” in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend.”
9. From a reading of Subsection (2) of Section 29 of the Limitation Act, it is evident that where a special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and also for the purpose of determining any period of limitation prescribed for any appeal, suit or application by any special or local law, provisions contained in Sections 4 to 24 (inclusive) shall apply. However, the provisions contained in Sections 4 to 24, which include Section 5, shall apply only insofar as and to the extent to which they are not expressly excluded by such special or local law.
10. Indisputably, the Act of 2017 is a special legislation and prescribes period for filing appeal under Subsection (1) of Section 107, which is different from the period prescribed in the Limitation Act and, therefore, Sections 4 to 24 would prima facie be applicable. However, Sections 107(1) and 107(4) by prescribing a period of limitation and also the period upto which the appellate authority can condone the delay in filing the appeal, shall be deemed to have completely and expressly excluded the applicability of Section 5 of the Limitation Act. The appellate authority was, thus, perfectly justified in rejecting the appeals having been preferred beyond the period of four months from the date of communication of the order of assessment passed by the adjudicating authority.
11. In the view we have taken, we are supported by a judgment of the Hon’ble Supreme Court in the case of Singh Enterprise v. Commissioner of Central Excise, Jamshedpur, (2008) 3 SCC 70. In the aforesaid appeal Hon’ble the Supreme Court was considering similar provisions contained in Section 35 of the Central Excise Act, 1944. Under Subsection (1) of Section 35, the period of limitation prescribed is sixty days from the date of communication of the impugned order. Proviso to Subsection (1) confers discretion on the Commissioner (Appeals) to entertain an appeal beyond the prescribed period of sixty days provided it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the prescribed period of sixty days. However, this discretion is also restricted to condone the delay of maximum period of thirty days. While interpreting Section 35 and considering the arguments of the appellant that under Section 5 of the Limitation Act, Commissioner Appeals was competent to condone the delay even beyond the period of thirty days prescribed by the proviso, Hon’ble Supreme Court in paragraph No.8 of the judgment held thus:-
“8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the Limitation Act) can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. 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 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 upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period.”
12. Before we proceed further, we deem it appropriate to set out Section 35 of the Central Excise Act, 1944 for comparison purpose, which reads thus:
“35. APPEALS TO COMMISSIONER (APPEALS).
(1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) [hereafter in this Chapter referred to as the Commissioner (Appeals)] within sixty days from the date of the communication to him of such decision or order :
Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.
(2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner.”
13. Similar view was taken by the Hon’ble Supreme Court in the case of Commissioner of Customs and Central Excise v. Hongo India (P) Ltd. (2009) 5 SCC 791. In this case, a three Judge Bench of the Hon’ble Supreme Court was considering the period of limitation of 180 days under Section 35-H(1) of the Central Excise Act and the applicability of Section 5 of the Limitation Act to condone the delay beyond 180 days and in paragraph Nos.32 to 36 it concluded thus:
“32) As pointed out earlier, the language used in Sections 35, 35B, 35EE, 35G and 35H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days.
33. Even otherwise, for filing an appeal to the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision.
34) Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to High Court.
35. It was contended before us that the words “expressly excluded” would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law here in this case is Central Excise Act. The nature of the remedy provided therein are such that the legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.
36. The scheme of the Central Excise Act, 1944 support the conclusion that the time limit prescribed under Section 35H(1) to make a reference to High Court is absolute and unextendable 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.”
14. In the later decision of M/s Bengal Chemists and Druggists Association v. Kalyan Choudhary, (2018) 3 SCC 41, Hon’ble the Supreme Court again considered the same question in the light of Section 421(3) of the Companies Act, 2013, which prescribed a period of forty five days for filing an appeal from the orders of the Tribunal. The proviso appended to Subsection (3), however, conferred discretion on the appellate tribunal to entertain the appeal even after expiry of said period of forty five days provided it was satisfied that the appellant was prevented by sufficient cause for filing the appeal within that period. However, the discretion to condone the delay was restricted to a period not exceeding forty five days after the expiry of the prescribed period of limitation. A similar argument was raised before the Hon’ble Supreme Court but the same was turned down by holding that if the Court were to accept such argument, it would mean that notwithstanding that further period of forty five days had elapsed, the Appellate Tribunal may, if the facts so warrant, condone the delay. It was pointed out that this would render otiose the second time limit of 45 days, which is peremptory in nature. The observations of the Supreme Court contained in paragraph Nos. 5 and judgment are relevant and are, therefore, set out below:-
“5) Another very important aspect of the case is that 45 days is the period of limitation, and a further period not exceeding 45 days is provided only if sufficient cause is made out for filing the appeal within the extended period. According to us, this is a peremptory provision, which will otherwise be rendered completely ineffective, if we were to accept the argument of learned counsel for the appellant. If we were to accept such argument, it would mean that notwithstanding that the further period of 45 days had elapsed, the Appellate Tribunal may, if the facts so warrant, condone the delay. This would be to render otiose the second time limit of 45 days, which, as has been pointed out by us above, is peremptory in nature.
6) We are fortified in this conclusion by the judgment of this Court in Chhattisgarh SEB v. Central Electricity Regulatory Commission, 2010 (5) SCC 23. The language of Section 125 of the Electricity Act, 2003, which is similar to the language contained in Section 421 (3) of the Companies Act, 2013, came up for consideration in the aforesaid decision. The issue that arose before this Court was whether Section 5 of the Limitation Act can be invoked for allowing the aggrieved person to file an appeal beyond 60 days plus the further grace period of 60 days. This Court held that Section 5 cannot apply to Section 125 of the Electricity Act in the following terms:
“25. Section 125 lays down that any person aggrieved by any decision or order of the Tribunal can file an appeal to this Court within 60 days from the date of communication of the decision or order of the Tribunal. Proviso to Section 125 empowers this Court to entertain an appeal filed within a further period of 60 days if it is satisfied that there was sufficient cause for not filing appeal within the initial period of 60 days. This shows that the period of limitation prescribed for filing appeals under Sections 111(2) and 125 is substantially different from the period prescribed under the Limitation Act for filing suits, etc. The use of the expression “within a further period not exceeding 60 days” in the proviso to Section 125 makes it clear that the outer limit for filing an appeal is 120 days. There is no provision in the Act under which this Court can entertain an appeal filed against the decision or order of the Tribunal after more than 120 days.”
The aforesaid judgment was reiterated and followed in ONGC v. Gujarat Energy Transmission Corporation Limited, 2017 (5) SCC 42 at Para 5.6”
The same line of reasoning is followed in some of the later judgments of the Hon’ble Supreme Court.
15. From the above enunciation of law by Hon’ble the Supreme Court consistently, the argument of learned counsel for the petitioners that by the aid of Section 29 of the Limitation Act, Section 5 is applicable to the appeal(s) filed under Section 107 of the Act of 2017 is without any substance and deserves to be rejected. The reliance placed by the learned counsel for the petitioners on a three Judge Bench judgment of the Supreme Court in the case of Superintending Engineer/Dehar Power House Circle Bakhra Beas Management Board and another v. Excise and Taxation Officer, AIR ONLINE 2019 SC 1380 in reference to Section 48 of the Himachal Pradesh Value Added Tax Act, 2005 is clearly distinguishable. In the aforesaid case it was held that as per the scheme of the Himachal Pradesh VAT Act, 2005 the proviso contained in Section 45 provided for an appeal from every original order passed under the Act and the Rules framed thereunder. The period of limitation for filing such appeal was sixty days or such more extended period, as the Appellate Authority may allow for reasons to be recorded in writing. It was in the context of different provisions contained in Section 45 of the Himachal Pradesh Vat Act, it was concluded by the Hon’ble Supreme Court that there was nothing in the Scheme of Himachal VAT Act to exclude applicability of Section 5 of the Limitation Act, whereas Hon’ble Supreme Court in the case of Bengal Chemists and Druggists (supra) has clearly deducted from the Scheme of Central Excise Act the provisions of appeal which are in pari materia with the Act of 2017 and has authoritatively held the non-applicability of Section 5 of the Limitation Act.
16. The other judgment relied upon by the learned counsel for the petitioners is in the case of S.K. Chakrobarty v. Union of India rendered by the Calcutta High Court, which in view of the settled legal position adumbrated above, does not lay down correct position of law.
17. In view of the aforesaid, the question raised in these appeals is answered in favour of the respondents and against the appellant(s) and it is held that the appellate authority cannot entertain an appeal under Section 107 of the Act of 2017 against a decision or order of the adjudicating authority, if it is filed beyond the period of four months from the date such decision or order is communicated to the person aggrieved.
18. Subsection (1) of Section 107 prescribes period of limitation for presenting such appeal(s) as three months. However, Subsection (4) of Section 107 gives discretion to the appellate authority to condone the delay beyond the period of limitation prescribed under Subsection (1) provided it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period of three months. However, such discretion is confined to condoning the delay to the maximum period of thirty days and not beyond that. By making such provision in Subsection (4), the legislature has foreclosed the further discretion of the appellate authority to condone the delay beyond the period of thirty days even by the aid of Section 29 of the Limitation Act. The scheme of the Act of 2017, in particular, provisions of Section 107(4) expressly exclude the applicability of Section 5 of the Limitation Act. Viewed thus, the appellate authority was fully justified in rejecting the appeals of the petitioners.
19. This brings us to another question raised by the petitioners i.e. even if the appellate authority does not have power to condone the delay beyond the period of thirty days as prescribed under Subsection (4) of Section 107 of the Act of 2017, this Court, in the exercise of its extraordinary jurisdiction vested under Article 226 of the Constitution of India, can direct such condonation of delay, if it is satisfied that a case of exceptional nature is made out for such condonation of delay or that the interest of justice would warrant condoning the delay.
20. Under Article 226 of the Constitution of India, High Court has the power to issue certain writs for enforcement of fundamental rights and for any other purpose. This provision gives High Court wide discretionary power to ensure justice. In the context of condoning delay, if a statute expressly prohibits condonation of delay, it generally binds the Courts. However, such prohibition contained in the statute does not take away the extraordinary jurisdiction vested in the High Court under Article under Article 226 of the Constitution of India. The High Court can, thus, condone the delay in exceptional cases where it deems it necessary to prevent miscarriage of justice, even if statute prohibits such condonation. This is particularly relevant when dealing with fundamental rights or where strict application of the statute would result in gross injustice.
21. The periods of limitation are procedural in nature. Therefore, the prohibition contained in Section 107(4) of the Act of 2017 to condone delay beyond one month cannot come in the way of Constitutional Court exercising extraordinary jurisdiction to render substantial justice. Therefore, while a statutory prohibition is a strong consideration to be kept in mind, yet it does not bar the jurisdiction of the High Court to condone the delay if it is of the opinion that application of delay barring statute would result in gross injustice. Each case is, thus, required to be evaluated on its specific facts and circumstances.
6. So far as interpretation of taxation/fiscal statute is concerned, it is trite law that charging provisions would require literal or strict construction whereas machinery provision and the provisions for appeals and limitation period may not require strict or literal constructions. The principle always lean in favour of advancing the cause of justice where a clear case is made out for so doing, since justice and reasoning is at the heart of all legislation. While we do not dispute that where a statute prohibits condonation of delay beyond a particular period or does not provide for any such condonation, this Court in the exercise of jurisdiction under Article 226 of the Constitution should not, on the drop of hat, exercise its jurisdiction under Article 226 of the Constitution of India and do something which is specifically prohibited by a statute or legislative enactment. Doing so without there being exceptional circumstances would render such statute or legislative enactment otiose. However, as stated above, the power vested in the High Court under Article 226 of the Constitution of India is extraordinary in nature and may be exercised in a particular case to ensure that the procedural laws do not cause miscarriage of justice.
23. Learned Advocate General appearing for the respondents fairly conceded to this legal position but submits that in all these cases the petitioners have not made out a case of exceptional nature as would warrant exercise of extraordinary jurisdiction vested in this Court under Article 226 of the Constitution of India to condone the delay despite their being clear prohibition to do so under Section 107(4) of the Act of 2017.
24. After stating the legal position on the two core issues raised by the parties, we proceed to examine each case on its facts and circumstances.
WP(C) No.1413/2024
25. In the instant case, the impugned order was passed by the adjudicating authority on 12th December, 2023 and the same was communicated to the petitioner on the same day through GST Portal (Email/SMS). The order was communicated to the petitioner on his phone No.9419078500 and Email Id. [email protected].
However, the appeal was filed after a period of five months and twenty two days. The petitioner had not filed any separate application for condonation of delay. However, in the memo of appeal, the petitioner has stated the reasons of delay as under:-
“a) period of delay:-
b) reason of delay:- Appellant was facing severe ill health and the records were maintained by the Accountant of the appellant, who have failed to convey the notice to the appellant.”
26. Neither the petitioner has disputed the date of communication of the order nor has he placed on record any material before the appellate authority to demonstrate that during the period of limitation the petitioner was under such a disability, which prevented him from filing the appeal in time. If such is the reason given by the petitioner to seek condonation of delay for the period beyond thirty days, as prescribed under Section 107(4) of the Act of 2017, this Court cannot, by any stretch of reasoning, bring the case of the petitioner under exceptional circumstances or a case of extreme nature to invoke its extraordinary jurisdiction and condone the delay despite there being statutory prohibition not to do so after a particular period. The petitioner has himself remained negligent and remissness in preferring the appeal within time and, therefore, must suffer its consequences. The assessment order passed by the adjudicating authority under the Act of 2017 cannot be kept open ended for indefinite period and the timelines prescribed in the statute are required to be respected and complied with.
WP(C) No.1259/2024
27. In the instant case, the order under Section 74 of the Act of 2017 was passed by the adjudicating authority concerned on 2nd September, 2023 and the same was communicated to the petitioner on the same day through GST Portal (Email/SMS). The order was communicated to the petitioner on his phone No.7006342469 and Email Id. [email protected]. The appeal was filed by the petitioner before the appellate authority on 3rd April, 2024 i.e. after seven months and one day. There was, thus, a delay of three months and one day beyond the period of thirty days prescribed under Section 107(4) of the Act of 2017. In this case also, the petitioner had not moved any separate application seeking condonation of delay and rightly so, as the petitioner was aware that the condonation of delay beyond thirty days was not permissible in view of the express provisions of Subsection (4) of Section 107 of the Act of 2017.
28. In the memo of appeal the petitioner has only pleaded that he came to know of the passing of the order by the adjudicating authority only in February, 2024, when he came to know from the concerned bank authorities that his account has been ordered to be seized by the State Taxes Department on account of arrears of tax, interest and penalty. There is nothing said beyond this by the petitioner in the memo of appeal to justify the delay in filing of the appeal.
29. It is not the case of the petitioner that he was not communicated the order impugned by the adjudicating authority in time or that his appeal was within the prescribed period of limitation reckoned from the date of communication of the order. The petitioner also does not plead any legal disability, which prevented him from preferring the appeal in time.
30. In view of the aforesaid facts and circumstances, we are of the considered opinion that the case of the petitioner herein also does not fall under exceptional circumstances explained above, which would warrant interference by this Court in the exercise of extra ordinary writ jurisdiction conferred by Article 226 of the Constitution of India.
WP(C) No.2268/2023
31. In the instant case, the order impugned in the appeal before the appellate authority was passed by the adjudicating authority on 16th July, 2022 under Section 74 of the Act of 2017. The order was communicated to the petitioner on the same day through GST Portal (Email/SMS). The order was communicated to the petitioner on his phone No.9797269625 and Email Id. [email protected].
32. The appeal was preferred by the petitioner before the appellate authority on 3rd February, 2023 i.e. after six months and eighteen days. There was, thus, a delay of two months and eighteen days after the expiry of the period of thirty days envisaged under Section 107(4) of the Act of 2017. There is no separate application filed by the petitioner seeking condonation of delay. However, in the memo of appeal, the reasons given by the petitioner for delayed filing of the appeal is that the petitioner was out stationed for medical reasons as his father had suffered multiple cardiac arrests due to which he had to leave the valley for number of months for medical treatment outside the State.
33. The petitioner has not placed on record any documentary evidence in support of the aforesaid assertion nor has he given the dates during which his father remained under treatment outside the State. That being so, the casual remarks under paragraph 15(b) of the memo of appeal filed before the appellate authority cannot be a reason for seeking condonation of delay beyond the period of thirty days, as is prescribed under Subsection (4) of Section 107 of the Act of 2017. We, therefore, do not find it also a case of any exceptional nature, which would warrant exercise of extraordinary jurisdiction vested in this Court under Article 226 of the Constitution of India to condone the delay despite there being a statutory prohibition contained in Section 107(4) of the Act of 2017 for such condonation.
WP(C) No.1086/2024
34. In the instant case, the order impugned in the appeal before the appellate authority was passed on 31st December, 2023 under Section 73 of the Act of 2017. The order was communicated to the petitioner on the same day through GST Portal (mail/SMS). The order was communicated to the petitioner on his phone No.9622653800 and Email Id. [email protected].
35. The appeal was preferred by the petitioner before the authority after four months and eleven days of the communication of the order. There was, thus, a delay of eleven days expiry of the period of thirty days envisaged under Section 107(4) of the Act of 2017. No separate application was filed by the petitioner seeking condonation of delay. However, in the memo of appeal, the petitioner has referred to his difficulties, which he faced on account of GST having been introduced in the Union Territory of J&K in the month of July, 2017 and that he had initially problems in understanding its provisions. There is also reference to the interruption by lockdown imposed by the Government due to Covid-19. However, requisite facts have neither been pleaded nor substantiated in the memo of appeal.
36. Although, delay in this case is only of 11 days, yet in view of the clear prohibition contained in Section 107(4) of the Act of 2017, the appellate authority could not have condoned the delay. We also do not find it a case of exceptional nature to exercise extraordinary jurisdiction vested in this Court under Article 226 of the Constitution of India to condone the delay despite there being a statutory prohibition.
WP(C) No.1080/2024
37. In the instant case, the order impugned in the appeal before the appellate authority was passed on 30th December, 2023 under Section 73 of the Act of 2017. The order was communicated to the petitioner on the same day through GST Portal (mail/SMS). The order was communicated to the petitioner on his phone No.9419088162 and Email Id. [email protected].
38. The appeal was preferred by the petitioner before the authority after four months and eleven days of the communication of the order. There was, thus, a delay of eleven days after the expiry of the period of thirty days envisaged under Section 107(4) of the Act of 2017. No separate application was filed by the petitioner seeking condonation of delay. However, in the memo of appeal, the petitioner has referred to his difficulties, which he faced on account of GST having been introduced in the Union Territory of J&K in the month of July, 2017 and that he had initially problems in understanding its provisions. There is also reference to the interruption by lockdown imposed by the Government due to Covid-19. However, requisite facts have neither been pleaded nor substantiated in the memo of appeal.
39. Although, delay in this case was only 11 days, yet in view of the clear prohibition contained in Section 107(4) of the Act of 2017, the appellate authority could not have condoned the delay. We also do not find it a case of exceptional nature to exercise extraordinary jurisdiction vested in this Court under Article 226 of the Constitution of India to condone the delay despite there being a statutory prohibition.
WP(C) No.1099/2024
40. In the instant case, the order impugned in the appeal before the appellate authority was passed on 5th December, 2023 under Section 74 of the Act of 2017. The order was communicated to the petitioner on the same day through GST Portal (mail/SMS). The order was communicated to the petitioner on his phone No.6006363212 and Email Id. [email protected].
41. The appeal was preferred by the petitioner before the appellate authority after five months and nine days of the communication of the order. There was, thus, a delay of one month and nine days after the expiry of the period of thirty days envisaged under Section 107(4) of the Act of 2017. Neither specific request for condonation of delay was made nor any reasons given in the memo of appeal for belated filing of appeal, that, too, beyond the period of four months.
42. In view of the above, we also do not find it a case of exceptional nature to exercise extraordinary jurisdiction vested in this Court under Article 226 of the Constitution of India to condone the delay despite there being a statutory prohibition.
WP(C) No.1336/2024
43. In the instant case, the order impugned in the appeal before the appellant authority was passed on 31st March, 2023. The said order was communicated to the petitioner on the same day through GST Portal (Email/SMS) on his Phone No.7006292515 and Email ID [email protected].
44. The appeal was filed by the petitioner before the appellant authority on 21st February, 2024 i.e. 10 months and twenty one days. There is, thus, delay of six months and twenty one days in filing the appeal before the appellate authority even after expiry of the period envisaged under Section 107(4) of the Act of 2017. Neither separate application for condonation of delay was filed nor any reason has been given for delayed filing of the appeal.
45. It is not the case of the petitioner that there was no communication of the order under appeal to the petitioner in time or that he filed the appeal within the prescribed period of limitation from the date of communication of the order. In the absence of any specific reason, which prevented the petitioner from filing the appeal in time, exercise of extra ordinary writ jurisdiction by this Court to condone the delay despite there being a statutory prohibition is not called for.
WP(C) No.2543/2023
46. In the instant case, the order impugned in the appeal before the appellant authority was passed on 19th December, 2022 and the same was communicated to the petitioner on the same day through GST Portal (Email/SMS) on his Phone No.9858756786 and Email Id. [email protected].
47. The appeal was filed by the petitioner before the authority after six months and twenty six days. There delay of two months and twenty six days in filing the appeal before the appellate authority after expiry of the period prescribed in Section 107(4) of the Act of 2017. A separate application was filed by the petitioner before the appellant authority for seeking condonation of delay on the ground that the petitioner was unwell on 15.03.2023 and was under treatment of a medical practitioner, who had advised him complete bed rest.
48. In the present case, the order impugned in the appeal is dated 19.12.2022 and, therefore, the petitioner being unwell on 15.03.2023 does not show any extraordinary circumstance, which prevented him from filing appeal in time. The reasons for delayed filing of appeal given by the petitioner are merely ipsi dixit of the petitioner and do not bring his case within exceptional circumstances warranting exercise of extraordinary jurisdiction by this Court to condone the delay
WP(C) No.1372/2024
49. In the instant case the order impugned in the appeal filed before the appellate authority was passed on 1st January, 2024 and the same was communicated to the petitioner on the same day through GST Portal (Email/SMS). The appeal before the appellate authority was filed on 01.06.2024. There is thus, delay of about two months after the expiry of four months as envisaged in terms of Section 107 of the Act of 2017. A separate application was filed by the petitioner before the appellant authority for seeking condonation of delay on the ground that the appeal could not be filed on time and there was delay of two months, which occurred due to communication gap between the petitioner and his consultant, who was entrusted the job of filing returns on behalf of the petitioner and the petitioner came to know only when his bank account was seized under the orders of State Taxes Authorities.
50. It is not the case of the petitioner that there was no communication of the order under appeal to the petitioner in time or that he filed the appeal within the prescribed period of limitation from the date of communication of the order. The reasons given by the petitioner for seeking condonation of delay are only an ipsi dixit of the petitioner, which do not bring his case within the exceptional circumstances, which would warrant exercise of extra ordinary writ jurisdiction by this Court to condone the delay despite there being a statutory prohibition.
WP(C) No.1292/2024
51. In the present case, the order impugned in the appeal filed before the appellate authority was passed on 1st December, 2023 and the same was communicated to the petitioner on the same day through GST Portal (SMS/Email) on his phone No.7298497146 and Email Id. [email protected] . The appeal before the appellate authority was filed on 26th April, 2024. There is, thus, delay of four months and twenty five days. The condonation of delay in filing the appeal was sought on the ground that the appeal could not be filed in time due to severe health problems, unavoidable exigencies and death of father of the petitioner. However, no documents have been appended with the application seeking condonation of delay to substantiate the aforesaid assertion.
52. Neither medical certificates have been placed on record nor even the particular dates of encountering such problems and unavoidable exigencies have been indicated. The reasons stated for delayed filing of appeal by the petitioner are, therefore, ipsi dixit of the petitioner and do not bring the case of the petitioner under exceptional circumstances warranting exercise of extraordinary jurisdiction by this Court to condone the delay beyond the period specifically provided in the statute.
WP(C) No.1204/2024
53. In the instant case, the order impugned in the appeal filed before the appellate authority was passed on 19th October, 2023 and the same was communicated to the petitioner on the same day through GST Portal (SMS/Email) on his phone No.9906699056 and Email Id. [email protected].
54. The appeal was filed on 27th April, 2024 after a delay of six months and eight days. Neither specific request for condonation of delay was made nor was any reason for delayed filing of the appeal stated by the petitioner in the memo of appeal. There is delay of two months and eight days even beyond the period of four months as envisaged under Section 107 of the Act of 2017.
55. We do not find it a case warranting exercise of extraordinary writ jurisdiction by this Court to condone the delay despite there being statutory prohibition to do so.
WP(C) No.1210/2024
56. In the instant case, the order impugned in the appeal preferred before the appellate authority by the petitioner was passed on 12th December, 2023 and the same was communicated to the petitioner on the same day through GST Portal (Email/SMS) on his Phone No.7006001932 and Email Id. [email protected]
57. The appeal was filed on 01.05.2024 i.e. after four months and twenty days. No specific application for condonation of delay was made. However, in the memo of appeal the reason given for delayed filing of the appeal is that son of the petitioner was facing severe health problem for the last several months and that he was being treated in Delhi. However, the petitioner has not given any date during which his son was being treated in Delhi hospital.
58. The order impugned in the appeal before the appellate authority was communicated to the petitioner on 12th December, 2023 and therefore, there was enough time for the petitioner to file appeal in time.
59. Be that as it may, the reasons put forth by the petitioner for seeking condonation of delay are only ipsi dixit of the petitioner and do not bring the case of petitioner under exceptional circumstances warranting exercise of extraordinary jurisdiction by this Court to condone the delay.
60. For the foregoing reasons, all these writ petitions are found to be without merit, hence dismissed.
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