Ashoka India Corporation & Anr. Vs Assistant Commissioner of Revenue (Calcutta High Court)
Calcutta High Court allowed a writ petition filed by Ashoka India Corporation & Anr., setting aside an order that had rejected their appeal. The petitioners had appealed after paying the full amount of the disputed tax. However, their appeal was rejected due to a delay in filing, as they had failed to submit a separate application for condonation of the delay. The petitioners then approached the High Court, seeking a direction to allow them to file such an application.
The petitioners’ counsel argued that since the entire disputed tax amount had already been paid, the question of pre-deposit for filing the appeal did not arise. They acknowledged the delay but attributed it to an oversight in not filing a condonation application along with the appeal. They requested the court to direct the appellate authority to accept their condonation application and decide on the issue of delay before considering the appeal on its merits. The respondent’s counsel confirmed that pre-deposit was not an issue but emphasized that the appeal was rejected due to the absence of a condonation application.
The High Court allowed the writ petition, citing the principle that procedural technicalities should not come in the way of justice, especially when there is no mala fide intention. It emphasized that statutory provisions on limitations should be interpreted liberally, particularly when genuine hardship is demonstrated. The court referred to a previous decision of its own, S. K. Chakraborty & Sons Vs. Union of India, which held that the limitation period for filing appeals can be extended in appropriate circumstances.
The High Court noted that the petitioners’ appeal was rejected due to a procedural irregularity and that the delay was not intentional. The court also pointed out that the appellate authority’s order mentioned non-payment of the pre-deposit, even though the entire disputed tax amount had already been debited from the petitioners’ electronic credit ledger. The petitioners’ appeal form itself reflected this payment.
The High Court quashed the order rejecting the appeal and directed the appellate authority to consider the petitioners’ application for condonation of delay on its merits. If the appellate authority finds the explanation for the delay sufficient, it is to condone the delay, hear the appeal, and dispose of it on merits. The court clarified that no costs would be awarded.
FULL TEXT OF THE JUDGMENT/ORDER OF CALCUTTA HIGH COURT
Learned counsel appearing for the petitioners submits that the petitioners have preferred an appeal after payment of the whole amount of disputed tax. So the question of pre-deposit at the time of filing of the appeal does not arise.
Learned counsel further submits that the petitioners have failed to submit one application for condonation of delay while filing an appeal and the appellate authority has passed an order rejecting the appeal of the petitioners on the ground of delay.
Learned counsel prays for a direction from this Court to the appellate authority for accepting an application for delay to b filed by the petitioners before going into the merits of the case and be heard the application for delay before passing an order on merits of the appeal.
Learned counsel appearing for the respondent authorities submits that as the whole amount of tax has been paid there is no question of predeposit but as the petitioners have not preferred an application for condonation of delay for filing an appeal, the appeal was rejected.
Heard learned counsels appearing for the parties.
Upon a thorough examination of the documents presented to the Court and taking into account the arguments put forth by the parties, this Court allows the writ petition as statutory provisions on limitation should be interpreted liberally in cases where genuine hardships are demonstrated, particularly, in light of judicial precedents supporting such relief.
In S. K. Chakraborty & Sons Vs. Union of India reported in [2024] 159 taxman.com 259 (Calcutta), the Hon’ble Division Bench comprising Justice Debangsu Basak and Justice Md. Shabbar Rashidi held that: –
“19. Section 107 of the Act of 2017 does not exclude the applicability of the Act of 1963 expressly. It does not exclude the applicability of the Act of 1963 impliedly also if one has to consider the provisions of Section 108 of the Act 2017 which provides for a power of revision to the designated authority, against an order of adjudication. In case of revision a far more enlarged period of time for the Revisional Authority to intervene has been prescribed. Two periods of limitations have been prescribed for two different authorities namely, the Appellate Authority and the Revisional Authority in respect of the same order of adjudication. Any interference with the order of adjudication either by the Appellate Authority or by the Revisional Authority would have an effect on the defaulter/notice. Section 107 does not have a non-obstante clause rendering Section 29(2) of the Act of 1963 non-applicable. In absence of specific exclusion of the Section 5 of the Act 1963 it would be improper to read an implied exclusion thereof. Moreover, Section 107 it its entirely has not expressly stated that, Section 5 of the Act of 1963 stands excluded.
20. Therefore, in our view, since provisions of Section 5 of the Act of 1963 have not been expressly or impliedly excluded by Section 107 of the Act of 2017 by virtue of Section 29(2) of the Act of 1963, Section 5 of the Act of 1963 stands attracted. The prescribed period of 30 days from the date of communication of the adjudication order and the discretionary period of 30 days thereafter, aggregating to 60 days is not final and that, in given facts and circumstances of a case, the period for filling the appeal can be extended by the Appellate Authority”.
The rejection of the appeal, therefore, lacked due consideration of these facts. While the petitioner acknowledges missing the extended deadline under Notification No. 53/2023 due to unawareness of the earlier appeal’s rejection, the delay was not deliberate.
Moreover, the appellate authority rejected the appeal on May 30, 2024, citing limitation and nonpayment of the required pre-deposit of 12.5% of the disputed tax. However, the disputed tax amount of Rs.32,67,900.00/- (Rs.16,33,950.00/- each for CGST and SGST) had already been debited from the petitioner’s electronic credit ledger on 20.05.2022. The petitioner’s appeal petition (Form GST APL-01) clearly reflected in Table 15(a) that no pre-deposit was required and in Table 15(b) that the entire disputed amount had been paid.
In light of the procedural irregularities and the arbitrary nature of the actions, this court finds the petitioner’s case to be meritorious. Accordingly, the writ petition is allowed and the appellate order dated May 30, 2024 is quashed. The Appellate Authority is requested to consider and decide the application for condonation of delay filled by the petitioner on merits. If, the explanations advanced for condonation of delay are accepted to be sufficient, the Appellate Authority may condone the delay in preferring the appeal, hear and dispose the appeal on merit.
All pending applications are accordingly disposed of.
There shall be no order as to costs.
All parties shall act on the server copy of this order duly downloaded from the official website of this Court.
