Biswajit Das v. State Of West Bengal And ORS.

Sl.8 07.04.2025 Court No.2 BP Calcutta High Court In the Circuit Bench at Jalpaiguri Appellate Side WPA 693 of 2025 Biswajit Das -versusThe State of West Bengal & Ors.

Mr. Promit Majumdar Ms. Ranka Chakraborty ..for the petitioner Mr. Joyjit Choudhury, Ld. AAG Ms. Rima Sarkar ..for the State This application under Article 226 of the Constitution of India is directed against an order dated December 27, passed by Additional Commissioner, Siliguri Charge thereby rejecting the appeal filed by the petitioner under Section 107 of the WBGST Act on the ground that the same was filed beyond the prescribed period of four months from the date of communication of order appealed against.

petitioner preferred an appeal beyond the period of four months from the date of service of the order appealed against and prayed for condonation of such delay. The issue that falls for consideration in this writ petition is whether such delay could have been condoned by the appellate authority.

More or less similar issue fell for consideration before this Court in WPA 1829 of 2024 in the case of Abdul Aziz Sarkar vs. Assistant Commissioner of Revenue, Jalpaiguri Charge, Jalpaiguri & Ors. wherein this Court held that in the absence of specific exclusion of Section 5 of the Act 1963 it would be improper to read and implied exclusion thereof. The operative part of the said decision is extracted hereinafter:

"The effect of the order of stay in a pending appeal before the Hon'ble Apex Court fell for consideration before a Co-ordinate Bench in the case of Pijush Kanti Chowdhury Vs. State of West Bengal and others reported at 2007(3)CHN 178. In paragraph 13 of the said reports the Coordinate Bench held that the effect of the order of stay in a pending appeal before the Apex Court does not amount to 'any declaration of law' but is only binding upon the parties to the said proceedings and at the same time, such interim order does not destroy the binding effect of the judgement of the High Court as a precedent because while granting the interim order, the Apex Court had no occasion to lay down any proposition of law inconsistent with the one declared by the High Court which is impugned. In view of the decision in the case of Pijush Kanti

Chowdhury (supra) this Court is not inclined to accept the submission of the learned advocate appearing for the State that the decision of the Hon'ble Division Bench in S.K. Chakraborty and Sons (supra) cannot be said to be a binding precedent upon this Court.

Hon'ble Division Bench in S.K.

Chakraborty and Sons(supra) held that since the 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 Hon'ble Division Bench held thus :

"16. The Co-ordinate Bench in Kajal Dutta (supra) has construed the provisions of Section 107(1) and (4) of the Act of 2017 and held that, the statue does not state that beyond the prescribed period of limitation the appellate authority cannot exercise jurisdiction.

17. It is in the interest of the nation that litigations come to an end as expeditiously as possible. To Achieve such purpose, legislature has enacted the Act of 1963 and prescribed various period of limitation beyond which, the right to approach an authority for redressal of the grievances remain suspended. Apart from the general law of Limitation as prescribed in the Act of 1963, special statutes prescribe period of limitation for specific scenarios and mandates completion of proceedings within the time period

specified. Prescription of a period of limitation by a special statute may or may not exclude the applicability of the Act of 1963. In the context of the issue that has fallen for consideration herein the provision of the Act of 1963 particularly Section 29(2) thereof should be considered.

18. Section 29(2) of the Act of 1963, has provided for situations where special or local law prescribes a period of limitation different from the period prescribed by the Act of 1963. It has provided that the provisions of Section 3 shall apply as if such period were the period prescribed by the schedule to the Act of 1963, 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 both inclusive shall apply only insofar as and to the extent to which they are not expressly excluded by the special or the local law.

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 of 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, Appellate Authority and the Revisional Authority in respect of 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

defaulter/noticee. 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 of 1963 it would be improper to read an implied exclusion thereof. Moreover, Section 107 in its entirety 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."

After going through the impugned order this Court finds that the appellate authority rejected the appeal only on the ground that the same was filed beyond the period of four months from the date of communication of the order appealed against.

Learned advocate appearing for the petitioner submits that the order of adjudicating authority was also not served properly upon the petitioner. Such being a factual issue cannot be decided by the writ court at this stage. It will be open to the petitioner to take such point before the appellate authority. By applying the ratio laid down by Hon'ble Division Bench in S.K.

Chakraborty & Sons (supra), this Court is of the considered view that the appellate authority was

not justified in rejecting the appeal petition solely on the ground that the same was filed beyond the maximum period of four months. For such reason, the order impugned is set aside and quashed. The application for condonation of delay filed by the petitioner before the appellate authority is restored to the file of the appellate authority.

appellate authority is directed to consider the application for condonation of delay on its own merit and in accordance with law and to dispose of such application by passing a reasoned order by giving an opportunity of hearing to the respective parties.

With the above observations and directions, WPA 693 of 2025 stands allowed.

No order as to costs.

Urgent certified photocopy of this order, if applied for, be supplied to parties expeditiously on compliance of usual legal formalities.

(Hiranmay Bhattacharyya, J.)