Raj Kumar Chhalani v. Joint Commissioner Of Revenue, State Tax, Jalpaiguri Circle And ORS

Form No.J(2) CALCUTTA HIGH COURT

IN THE CIRCUIT BENCH AT JALPAIGURI

CONSTITUTIONAL WRIT JURISDICION APPELLATE SIDE

Present:

The Hon'ble Justice Raja Basu Chowdhury WPA 889 of 2024 Raj Kumar Chhalani

Versus

Joint Commissioner of State Tax, Jalpaiguri Circle & Ors.

For the petitioner :

Mr. Sandip Choraria Mr. Rajeev Parik For the State :

Mr. Momenur Rahman Ms. Rima Sarkar Heard on :

1st May, 2024.

Judgment on :

1st May, 2024.

Raja Basu Chowdhury, J:

1. The instant writ petition has been filed, inter alia, challenging dismissal of the appeal preferred under Section 107 of the West Bengal Goods and Services Tax Act, 2017 (hereinafter referred to as the "said Act) by an order dated 19th January 2024.

2. It is the petitioner's case that being aggrieved with the determination under Section 73 of the said Act dated 17th July, 2023, the petitioner had filed an appeal under Section 107 of the said Act. Since, the said appeal which was otherwise barred by

limitation not being accompanied by an application under Section 5 of the Limitation Act, 1963, the Appellate Authority, by its order dated 19th January, 2024, was, inter alia, pleased to dismiss the said application.

3. The petitioner is, however, aggrieved by the findings arrived at by the Appellate Authority that there is no scope under the provisions of the said Act for condoning the delay in submitting an appeal beyond four months.

4. Mr. Choraria, learned advocate appearing for the petitioner by drawing attention of this Court to the provisions of Section 107(4) of the said Act submits that the Appellate Authority was competent to entertain the appeal beyond one month of the time prescribed, provided the same is accompanied by an application under Section 5 of the Limitation Act. He submits that before the petitioner could file its application under Section 5 of the Limitation Act, the Appellate Authority had taken up the appeal for hearing and had dismissed the same by the impugned order, inter alia, observing that there is no scope under the provisions of the said Act read with corresponding Chapter and Section of the said Act for condoning the delay in submitting appeal beyond four months.

5. According to him, the aforesaid observation made by the Appellate Authority is contrary to the statute. There is nothing in the provisions of the said Act which bars the Appellate Authority

from exercising jurisdiction to condone the delay beyond one month from the prescribed period as provided in the said Act

6. By placing reliance on a judgment delivered by a Hon'ble Division Bench of this Court in the case of S.K. Chakraborty & Sons v. Union of India reported in 2023 SCC Online 4759 it is submitted that the Division Bench while interpreting the provisions of the said Act having regard to Section 29(2) of the Limitation Act, 1963 has held that since, there is no expressed or implied exclusion of Section 5 of the Limitation Act, by virtue of Section 29(2) of the Limitation Act, Section 5 of the Limitation Act 1963 stands attracted. Having regard to the aforesaid he submits that this Hon'ble Court may be pleased to set aside the order passed by the Appellate Authority in refusing to condone the delay and in the facts of the case, direct the Appellate Authority to hear out the appeal by condoning the delay.

7. Ms.

Sarkar, learned advocate appearing for the State respondents, on the other hand by drawing attention of this Court to the provisions of Section 107(4) of the said Act submits that there is no power available to the Appellate Authority to condone the delay beyond the period of one month from the prescribed period of 90 days, provided for in preferring the appeal. According to her, the said Act is a self-contained code and excludes the applicability of the provisions Section 5 of the Limitation Act 1963. Though, the provisions of Section 5 of the

Limitation Act 1963 may not have been expressly excluded, the same stands impliedly excluded.

8. In support of her contention, Ms. Sarkar has placed reliance on a judgment of the Hon'ble Allahabad High Court delivered by the Learned Single Judge in the case of M/s Yadav Steels versus 2024 AHC 26169, She submits that the judgment delivered by the Division Bench of this Court in the case of S.K. Chakraborty & Sons (supra) was considered by the learned Single Judge and by distinguishing the same, had concluded that taxing statutes like GST Act embody a comprehensive framework with specific limitation provisions tailored to expedite the resolution of taxrelated matters. Section 107 of the said Act operates as a complete code in itself, explicitly delineating limitation periods for filing appeals and implicitly excluding the application of general limitation provisions such as Section 5 of the Limitation Act 1963.

9. In this case as no application under Section 5 of the Limitation Act was filed the appeal was dismissed. In any event since, the appeal was filed beyond one month from the prescribed period there was no opportunity available to the Appellate Authority to entertain the appeal. There is no irregularity on the part of the Appellate Authority in dismissing the appeal.

10 Heard the learned advocates appearing for the respective parties and considered the materials on record.

11 The legal issue that falls for consideration in the present petition is whether the Appellate Authority has the jurisdiction and/or competence to condone the delay beyond the prescribed period of one month provided for filing an appeal under Section 107(4) of the said Act.

12 It may be noticed that an identical issue had fell for consideration before the Hon'ble Division Bench of this Court in the case of S.K. Chakraborty & Sons (supra). The Division Bench of this Court, while considering the scope and ambit of Section 107 of the said Act and the applicability of Section 5 of the Limitation Act 1963 on the basis of the provisions contained in Section 29(2) of the Limitation Act 1963 and by placing reliance on the judgment delivered by the Hon'ble Supreme Court in the case Superintending Engineer/Dehar Power House Circle Bhakra Beas Management Board (PW) Slapper and another versus Excise and Taxation Officer Sunder Nagar/Assessing Authority reported in (2020) 17 SCC 692, had concluded that in absence of non obstante clause rendering Section 29 (2) of the Limitation Act 1963, non applicable and in absence of specific exclusion of Section 5 of the Limitation Act, 1963, it would be improper to read implied exclusion thereof. Having regard to the above, in my view the Appellate Authority is not denude of its

power to condone the delay beyond one month from the prescribed period of limitation as provided for in Section 107 (4) of the said Act.

13 It also appears that another Hon'ble Division Bench of this Court in the case of Kajal Dutta versus Assistant Commissioner of State Tax, Suri Charge and Ors. reported in (2023) 97 GST154 (Calcutta) had while considering the provisions of Section 107(4) of the said Act, held that the statute does not state that beyond the prescribed period of limitation, the Appellate Authority cannot exercise jurisdiction.

14 In the light of the above, the judgment delivered by the learned Single Judge of Allahabad High Court in the case of M/s Yadav Steel (supra) does not appear to be persuasive enough. 15 Having regard to the aforesaid, I find that the observations made by the Appellate Authority that there is no scope under the provisions of the said Act read with corresponding Chapter and Section of the said Act for condoning the delay beyond four month cannot be sustained. Such finding is set aside. 16 At the same time it may be noticed that the petitioner did not file any application for condonation of delay before the Appellate Authority. The petitioner, however, says that before the application under Section 5 of the Limitation Act could be filed the appeal was dismissed on the ground of limitation without giving an opportunity to the petitioner.

17 Be that as it may, since the petitioner has not filed an application for condonation of delay, this Court cannot consider whether there is any sufficient cause for condoning the delay. 18 Having regard to the aforesaid, I find that no relief can be granted in favour of the petitioner at this stage. The writ petition is accordingly disposed of.

19 However, the aforesaid order shall not prevent the petitioner from applying before the Appellate Authority by filing appropriate application praying for condonation of delay. 20 If such application is filed by the petitioner within a period of two weeks from date, appropriately explaining the delay in filing the appeal beyond the prescribed period of limitation, the Appellate Authority shall consider the same in accordance with law and in the light of the observations made herinabove. 21 Since no affidavit-in-opposition has been called for, the allegations contained in the writ petition are deemed not to have been admitted by the respondents.

Urgent Photostat certified copy of this order, if applied for, be made available to the parties upon compliance with the necessary formalities.

(Raja Basu Chowdhury, J.) sb