Kamala Stores & Anr. Vs State of West Bengal & Ors

FULL TEXT OF THE JUDGMENT/ORDER OF CALCUTTA HIGH COURT

Affidavit of service filed today is kept with the record.

The present writ petition has been filed, inter alia, challenging the order dated 18th September, 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 July, 2017 to March, 2018 an order under Section 73(9) of the said Act was passed on 24th November, 2023. 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.96,452/- 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 petitioners had also filed an application on 11th June, 2024 explaining the delay in preferring the appeal. According to the petitioners, 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 petitioners had filed an appeal challenging the order passed under Section 73(9) of the said Act. Simultaneously, with the filing of the appeal, the petitioners had also made pre-deposit of Rs.96,452/- as is required for maintaining the appeal. As such there is no lack of bona fide on the part of the

petitioners in preferring the appeal. It appears that the petitioners had also made a prayer for condonation of delay, inter alia, claiming that by reasons of lack of proper knowledge of the GST portal there had been delay in filing the appeal. There appears to be a delay of 79 days in filing the appeal.

Taking into consideration that the petitioners are a small partnership firm and there is no lack of bona fide on the part of the petitioners and one do 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 petitioners.

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. Chakraborty & 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 jurisdiction vested in it. Having regard to the above and taking note of the explanation given by the petitioners while setting aside the appellate order dated 18th September, 2024, I condone the delay in preferring the appeal.

Accordingly, I direct the appellate authority to hear and dispose of the appeal, on merit, upon giving an opportunity of hearing to the petitioners, within a period of eight weeks from the date of communication of this order.

With the above observations and directions, the writ petition is disposed of.

There shall be no order as to costs.

All parties shall act in terms of the copy of the order downloaded from the official website of this Court.