Point of Law : Any appeal which is preferred beyond the period indicated under Sections 107(1) and 107(4) of the KGST Act of 2017, cannot be entertained by the Appellate Authority.

ORDER :

1. The instant writ petition under Articles 226 and 227 of the Constitution of India is filed assailing the order at Annexure-D dated 03.06.2023, passed by the 2nd respondent in proceedings bearing T.No. 167/23-24.

2. Heard the learned counsel for the parties.

3. Facts leading to filing of this writ petition as revealed from the records narrated briefly are; the petitioner who is a proprietary concern, registered under the Karnataka Goods and Services Tax Act, 2017 (hereinafter referred to as ‘the KGST Act of 2017’) and under the Central Goods and Services Tax Act, 2017 (hereinafter referred to as ‘the CGST Act of 2017’), is engaged in the business of excavation of earth at mining head and supplies trippers to iron factories situated in and around Sandur, Hospet and Bellary of Karnataka. The petitioner was issued with a Show Cause Notice under Section 65 of the KGST Act of 2017 by respondent No. 1 and in response to the said notice, petitioner had produced books of accounts/records and documents to the respondent No. 3 Office in connection with the audit proceedings. Respondent No. 3 after verifying all the records and books of accounts of the petitioner, had passed an order under Sections 73(9), 50(1) and 50(2) of the KGST Act of 2017 and Section 5(1) of the Integrated Goods and Services Tax Act, 2017. The said order was passed on 27.12.2022. Assailing the said order, the petitioner had filed an appeal under Section 107 of the KGST Act of 2017 before the 2nd respondent-Appellate Authority. The said appeal was filed on 25.05.2023. Since the said appeal was filed after a delay of 59 days, the 2nd respondent had dismissed the appeal at the stage of admission, on the ground that he has no power to condone the delay of 59 days. It is under these circumstances, the petitioner is before this Court.

4. Learned counsel for the petitioner submits that under Section 109 of the CGST Act of 2017, the Central Government is required to constitute, by notification, an Appellate Tribunal known as the Goods and Services Tax Appellate Tribunal for hearing appeals against the orders passed by the Appellate Authority, and since the Appellate Tribunal is not constituted, he has preferred the writ petition. He submits that the 2nd respondent has erred in dismissing the appeal on the ground of delay since the petitioner had offered satisfactory explanation for the delay. He submits that the period of delay is negligible and therefore the Appellate Authority needs to be directed to consider the appeal on merits. In support of his arguments, he has placed reliance on the judgment passed by the High Court of Calcutta in WPA No. 2809/2022 disposed of on 09.01.2023 in the case of Suraj Mangar vs. Assistant Commissioner of West Bengal State Tax, Cooch Behar Charge and Others.

5. Per contra, learned AGA appearing for responding No. 1 submits that, when the statute does not empower the Appellate Authority to condone the delay beyond the prescribed period, the Courts cannot issue directions contrary to the statutory provisions. He submits that power to condone the delay beyond the prescribed period has been consciously not given to the Appellate Authority under Section 107 of the KGST Act of 2017. In support of his contention, he has placed reliance on the judgment of the Hon’ble Supreme Court in the case of National Spot Exchange Limited vs. Anil Kohli, Resolution Professional for Dunar Foods Limited in Civil Appeal No. 6187/2019 disposed of on 14.09.2021.

6. The petitioner being aggrieved by the order of respondent No. 3 dated 27.12.2022 vide Annexure-B, had preferred an appeal under Section 107 of the KGST Act of 2017 along with an application to condone the delay and the said appeal has been dismissed on the ground that the same is barred by limitation and the Appellate Authority has refused to condone the delay of 59 days caused in filing the Appeal, which is over and above the period of one month delay which the Appellate Tribunal could have condoned