Period for filing an appeal can be extended by the Appellate Authority

[CA Bimal Jain]

The Hon’ble Calcutta High Court in the case of JAYANTA GHOSH AND ORS. VERSUS THE STATE OF WEST BENGAL AND ORS.  - 2024 (3) TMI 779 - CALCUTTA HIGH COURT held that an Appellate Authority cannot dismiss an appeal on ground of limitation without affording any opportunity of hearing. The delay can be condoned if the principles of natural justice has been violated by not providing an opportunity of hearing to the Petitioner. The prescribed period of 30 days from the date of communication of the adjudication order and the discretionary period of 30 days, aggregating to 60 days is not final. Hence, the period for filing an appeal can be extended by the Appellate Authority.

Facts:

Mr. Jyanata Ghosh (“the Petitioner”) was served a Show Cause Notice (“SCN”) which itself reflected that the date of personal hearing, time of personal hearing and the venue of personal hearing was left blank. In pursuance to the SCN, an Order was passed on August 11, 2023 (“the Impugned Order”) under Section 74 of the Central Goods and Services Tax Act, 2017 (“the CGST Act”) raising a demand on the Petitioner for an amount of Rs.40,73,996.84 for the period April 2022 to March 2023. The issuance of the Impugned Order was in total violation of the principles of natural justice because opportunity of personal hearing was not granted to the Petitioner.

The Petitioner challenged the Impugned Order before the Appellate Authority (“the Respondent”) under Section 107 of the CGST Act. The Respondent vide Order dated January 17, 2024 (“the Impugned Order”) dismissed the appeal of the Petitioner on the ground of limitation.

Hence, aggrieved by the Impugned Orders, the Petitioner filed the present writ petition.

Issue:

Whether the period for filing an appeal can be extended by the Appellate Authority?

Held:

The Hon’ble Calcutta High Court in JAYANTA GHOSH AND ORS. VERSUS THE STATE OF WEST BENGAL AND ORS.  - 2024 (3) TMI 779 - CALCUTTA HIGH COURT held as under:

• Directed that, the Respondent should have given personal hearing to the Petitioner and decided appeal on merits. The Respondent had violated the principle of natural justice by not affording an opportunity of hearing to the Petitioner.
• Relied on, MURTAZA B KAUKAWALA VERSUS STATE OF WEST BENGAL AND ORS. - 2024 (4) TMI 508 - CALCUTTA HIGH COURT wherein the Calcutta High Court held that delay can be condoned if the principles of natural justice has been violated by not providing opportunity of hearing to the petitioner.
• Relied on, S.K. CHAKRABORTY & SONS VERSUS UNION OF INDIA & ORS. - 2023 (12) TMI 290 - CALCUTTA HIGH COURT wherein the Calcutta High Court held that once provisions of Section 5 of the Limitation Act, 1963 have not been expressly or impliedly excluded by Section 107 of the CGST Act, by virtue of Section 29(2) the Limitation Act, 1963, Section 5 of the Limitation Act, 1963, stand 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 filing the appeal can be extended by the Respondent.
• Held that, the delay in filing of the appeal was condoned and the writ petition is allowed by setting aside the Impugned Order dated January 17, 2024. Further, the Petitioner’s deposited pre-deposit amount i.e. 10% of the disputed tax amount, there shall be a stay of the recovery proceedings till disposal of the appeal case. Hence, the writ petition was disposed of.

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