CONDONATION OF DELAY IN FILING APPEAL AGAINST THE ORDER OF AUTHORITY FOR ADVANCE RULING

[Mr. M. GOVINDARAJAN]

Appellate Authority for Advance Ruling

Section 99 provides that for the purposes of this Act, the Appellate Authority for Advance Ruling constituted under the provisions of a State Goods and Services Tax Act or a Union Territory Goods and Services Tax Act shall be deemed to be the Appellate Authority in respect of that State or Union territory.

Appeal to Appellate Authority

Section 100 provides that the concerned officer, the jurisdictional officer or an applicant aggrieved by any advance ruling pronounced under sub-section (4) of section 98, may appeal to the Appellate Authority.

An appeal against the advance ruling issued under sub-section (6) of section 98 shall be made by an applicant on the common portal in Form GST ARA-02 and shall be accompanied by a fee of ten thousand rupees to be deposited in the manner specified in section 49.

An appeal against the advance ruling issued under sub-section (6) of section 98 shall be made by the concerned officer or the jurisdictional officer referred to in Section 100 on the common portal in Form GST ARA-03 and no fee shall be payable by the said officer for filing the appeal.

The appeal referred to above,  the verification contained therein and all the relevant documents accompanying such appeal shall be signed,-

• in the case of the concerned officer or jurisdictional officer, by an officer authorized in writing by such officer; and
• n the case of an applicant, in the manner specified in rule 26.

Limitation period for filing appeal

Every appeal under this section shall be filed within a period of 30 days from the date on which the ruling sought to be appealed against is communicated to the concerned officer, the jurisdictional officer and the applicant:

Condonation of delay

The Appellate Authority may, if it is satisfied that the appellant was prevented by a sufficient cause from presenting the appeal within the said period of 30 days, allow it to be presented within a further period not exceeding 30 days.  Each delay is to be explained by the appellant.

In re ‘Malli Ramalingam Mothilal’ – 2019 (10) TMI 208 – Appellate Authority for Advance Ruling, Tamil Nadu, the Appellate Authority held that as per proviso to Section 100(2), the Appellate Authority if satisfied that the appellant was prevented by a sufficient cause from presenting the appeal within the appeal period of 30 days can allow it to be presented within a further period not exceeding thirty days. In the case at hand, the appeal is filed within the statutory period though incomplete which has been made good within the further period of 30 days provided in the said proviso. Hence the lacuna is condoned and the appeal is taken up on merits.

In re ‘NUE Tech Solar Systems Private Limited’ – 2019 (8) TMI 901 – Appellate Authority for Advance Ruling, Karnataka –  the appellant, along with the appeal,  also filed an application for condonation of delay of 145 days in filing the appeal before the Appellate Authority. They submitted that the ruling of the AAR given vide order dated 31.12.2018 was received by them on 04.01.2019. On receipt of the ruling, they communicated with the following authorities to obtain their views on the matter:

a) Solar Thermal Federation of India

b) Karnataka Solar Manufacturers Association

c) Gold Standard Foundation

d) Ministry of New & Renewable Energy

e) Customs Authority.

The Appellate Authority held that on a plain reading of the provisions of Section 100 of the said Act, it is apparent that the same mandates that an appeal should be filed within 30 days from the date of communication of the advance ruling order that is sought to be challenged. However, in view of the proviso thereto, the Appellate Authority is empowered to allow the appeal to be presented within a further period of 30 days if it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the initial period of 30 days. Thus, the Appellate Authority is empowered to extend the period for filing an appeal for a further period of 30 days only and not more than such period.

Whether this Appellate Authority can entertain an appeal under Section 100 of the CGST Act beyond the period of 60 days does not require much debate and has been answered in the negative by the Supreme Court in the case of Singh Enterprises v. Commissioner of Central Excise, Jamshedpur- ‘2007 (12) TMI 11 – Supreme Court, the Supreme Court in the said case interpreted Section 35 of the Central Excise Act, 1944 which is similar to Section 100 of the CGST Act and examined the question whether the Commissioner (Appeals) has the power to condone the delay beyond the period of 30 days from the date of expiry of the period of 60 days prescribed for filing the statutory appeal and also whether the High Court, in exercise of the power conferred under Article 226 of the Constitution of India, can condone the delay.

It is evident that this Appellate Authority being a creature of the statue is empowered to condone a delay of only a period of 30 days after the expiry of the initial period for filing appeal. As far as the language of Section 100 of the CGST Act is concerned, the crucial words are "not exceeding thirty days" used in the proviso to sub-section (2). To hold that this Appellate Authority could entertain this appeal beyond the extended period under the proviso would render the phrase "not exceeding thirty days" wholly otiose. No principle of interpretation would justify such a result.  The Appellate Authority held the Appellate Authority is not empowered to condone the delay of 145 days in filing the present appeal.

In re ‘IL&FS Education and Technology Services Limited’ –Appeal No. 01/Odisha-AAAR/Appeal/2018, dated 14.11.2018, filed against Advance Ruling No. 01/Odisha-AAR/18-19, dated 20.06.2018, decided on 14.11.2018.  The Appellant has also made a prayer for condonation of 5 days delay, under section 100(2) of the CGST Act, 2017.  The appellant in support of condonation of delay has submitted that the Advance Ruling passed by AAR, Odisha was communicated to the appellant on 17.07.2018.  The appellant has also submitted the proof of the receipt of the speed post.   Accordingly, the time limit of 30 days for filing the appeal expired on 16.08.2018.  Considering that the appeal was filed on 21.08.2018, the delay in filing of appeal is reckoned to be 5 days.

The Appellant has also submitted that the delay in filing the present appeal is not intentional and there were rational grounds preventing the Appellant from being able to file the appeal.   The appellant further submitted that due to the demise of former Prime Minister Atal Bihari Vajpayee, the State holiday was declared on 17.08.2018.  Further, 18.08.2018 and 19.08.2018 were Saturday and Sunday.  The appellant also submitted that the corporate office of the appellant is in Noida, UP and the appeal was drafted by the appellant’s attorneys, whose office is situated in New Delhi.   Hence, the entire appeal book was prepared in New Delhi and it was subsequently posted to another office of the appellant in Bhubaneswar, Odisha.  The appeal book and filing documents were dispatched from Delhi on 17.08.2018 through Blue Dart Courier.  The Courier was expected to reach within 2 days of dispatch i.e., by 19.08.2018.  However due to delay in transit, the documents were received by appellant’s Odisha office on the evening of 20.08.2018.   It is, therefore, submitted that the delay in filing the appeal has been caused due to technical factors beyond the control of the appellant.  

The Appellate Authority found that the appellant has received the copy of the Advance Ruling passed by AAR, Odisha on 17.07.2018  and hence the appeal was required to be filed on or before 16.08.2018.  The present appeal preferred before AAAR, Odisha was received in the office of AAAR, Odisha on 21.08.2018.  Accordingly there is a delay of 5 days in filing of appeal.  The Appellate Authority has considered the reasons put forth by the appellant for delay in failing the appeal, which is satisfactory and reasonable.  Accordingly the Appellate Authority condoned the delay in filing appeal in terms of proviso to section 100(2) of the CGST Act & SGST Act, 2017.

In re ‘Rajiv Gandhi Centre for Aquaculture’ – 2019 (8) TMI 1287 - APPELLATE AUTHORITY FOR ADVANCE RULING, TAMILNADU, the appeal was filed with a delay of 13 days.   As per proviso to section 100(2) the Appellate Authority if satisfied that the appellant was prevented by a sufficient cause from presenting the appeal within the appeal period of 30 days can allow to be presented within a further period not exceeding 30 days.  The appeal is filed with the further period of 30 days provided in the said proviso.  The appellant submitted that clerical staff who received the impugned order did not bring the same immediately to the notice of the managing without realizing the importance and implication in incorrectly assuming that the appeal period is 60 days as in the case of service tax provisions and therefore the delay.  No date wise explanations are provided.  However the Appellate Authority considered the fact the appellant is a registered society functioning under the Marine Products Export Development Authority, Ministry of Commerce & Industry, Government of India, an autonomous body created by an Act of Parliament, the Appellate Authority condoned the delay and took the appeal for consideration.