Case Law Details
Acon Builders & Promoters Vs Commissioner (Madras High Court)
Introduction: A recent case in the Madras High Court, Acon Builders & Promoters vs. Commissioner, involved an appeal regarding tax assessment. The court addressed the issue of a 30-day delay in filing the appeal due to the assessee being abroad. This article provides a detailed analysis of the case and the court’s decision to set aside the order rejecting the condonation of the delay.
Detailed Analysis:
1. Background of the Case: The petitioner, Acon Builders & Promoters, filed an appeal against the Order-in-Original No.11/2022-ST dated 29.11.2022 passed by the second respondent. The first respondent, Commissioner of GST & Central Excise (Appeals-I), rejected the appeal, citing the delay in filing the appeal beyond the condonable period of limitation under Section 85 of the Finance Act, 1994.
2. Basis of Rejection: The first respondent rejected the appeal based on a decision of the Hon’ble Supreme Court in Assistant Commissioner (CT) LTU, Kakinada and others vs. Glaxo Smith Kline Consumer Health Care Limited. The Supreme Court’s decision emphasized the importance of adhering to statutory limitation periods and uncondonable delays in appeals.
3. Assessee’s Claim: The petitioner contended that they were abroad between 24.11.2022 and 26.02.2023, and during this period, the Order-in-Original was issued. The petitioner returned to India on 26.02.2023, which was the last day to file the appeal. They requested condonation of the 30-day delay in filing the appeal before the first respondent.
4. Madras HC’s Decision: The Madras High Court recognized the validity of the order passed by the first respondent in adherence to the Supreme Court’s decision. However, the court considered the petitioner’s unique circumstance of being abroad during the relevant period. In light of this, the Madras High Court set aside the impugned order and remitted the case back to the first respondent to decide the appeal on its merits and in accordance with the law, without reference to the limitation.
5. Pre-Deposit Requirement: The court specified that the petitioner’s appeal should be disposed of subject to the petitioner pre-depositing the amount as contemplated under Section 129E of the Income Tax Act, 1961.
Conclusion: The Madras High Court’s decision in Acon Builders & Promoters vs. Commissioner highlights the significance of adhering to statutory limitations in appeals. However, the court’s recognition of the petitioner’s unique circumstance of being abroad during the relevant period led to the setting aside of the order rejecting the delay. This case underscores the court’s role in considering exceptional situations and ensuring that appeals are decided on their merits. It also serves as a reminder of the importance of adhering to statutory requirements while allowing flexibility in deserving cases.
FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT
Mr. K. Mohanamurali, learned Senior Panel Counsel takes notice on behalf of the respondents.
2. Heard the learned counsel for the petitioner and the learned Senior Panel Counsel for the respondents.
3. This Writ petition is filed against the impugned Order-in-Appeal No.239/2023 (CTA-I) dated 24.08.2023 passed by the first respondent Commissioner of GST & Central Excise (Appeals-I) rejecting the petitioner’s appeal against the Order-in-Original No.11/2022-ST dated 29.11.2022 passed by the second respondent.
4. The petitioner filed an appeal against the aforesaid order of the second respondent on 29.03.2023 beyond the period of 32 days after the expiry of condonable period of limitation under section 85 of the Finance Act, 1994.
5. The first respondent has rejected the appeal filed by the petitioner on account of limitation by referring to the decision of the Hon’ble Supreme Court in Assistant Commissioner (CT) LTU, Kakinada and others Vs. Glaxo Smith Kline Consumer Health Care Limited, 2020 SCC Online SC 440/2020 (36) G.S.T.L. 305 (S.C.), wherein, in Paragraph 17, it has been held as under:-
“15. …., it is clear as crystal that the Constitution Bench in Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409, has rules that there is no conflict of opinion in Antulay case [A. R. Antulay v. R. S. Nayak, (1988) 2 SCC 602] or in Union Carbide Corpn. case [Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584] with the principle set down in Prem Chand Garg v. Excise Commr., AIR 1963 SC 996. Be it noted, when there is a statutory command by the legislation as regards limitation and there is the postulate that delay can be condoned for a further period not exceeding sixty days, needless to say, it is based on certain underlined, fundamental, general issues of public policy as has been held in Union Carbide Corpn. case [Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584], As the pronouncement in Chhattisgarh SEB v. Central Electricity Regulatory Commission, (2010) 5 SCC 23, lays down quite clearly that the policy behind the Actemphasising on the constitution of a special adjudicatory forum, is meant to expeditiously decide the grievances of a person who may be aggrieved by an order of the adjudicatory officer or by an appropriate Commission. The Act is a special legislation within the meaning of Section 29(2) of the Limitation Act and, therefore, the prescription with regard to the limitation has to be the binding effect and the same has to be followed regard being had to its mandatory nature. To put it in a different way, the prescription of limitation in a case of present nature, when the statute commands that this Court may condone the further delay not beyond 60 days, it would come within the ambit and sweep of the provisions and policy of legislation. It is equivalent to Section 3 of the Limitation Act. Therefore, it is uncondonable and it cannot be condoned taking recourse to Article 142 of the Constitution.”
6. The grievance of the petitioner is that the petitioner was out country for period between 24.11.2022 and 26.02.2023. In other words, the specific case of the petitioner is that before the Order-in-Original No.11/2022- ST dated 29.11.2022 passed by the second respondent, the petitioner had left the Country and went to Canada and returned only on 26.02.2023 that is last date for filing the appeal with an application to condone the delay of 30 days in filing the appeal before the first respondent.
7. The order passed by the first respondent Appellant Commissioner cannot be faulted in view of the decision of the Hon’ble Supreme Court in Glaxo Smith Kline Consumer Health Care Limited case (referred to supra).
8. However, at the same time, it has to be considered that the petitioner was not in a position to file an appeal prior to the date as is evident from the documents filed by the petitioner indicating that the petitioner was out of country between 24.11.2022 to 26.02.2023.
9. Considering the above, this Court is inclined to set aside the impugned order and remits the case back to the first respondent to dispose the appeal on merits and in accordance with law without reference to the limitation.
10. Needless to state, the petitioner’s appeal shall be disposed subject to the petitioner pre-depositing the amount as is contemplated under Section 129E of the Income Tax Act, 1961.
11. This Writ Petition is disposed of with the above observations. No costs. Consequently, the connected Writ Miscellaneous Petitions are closed.
