IMPORTANT POINT
The appellate authority under the WBGST Act has the jurisdiction to condone delays beyond one month as per Section 5 of the Limitation Act, 1963.

JUDGMENT :

(Raja Basu Chowdhury, J.)

1. The instant writ petition has been filed, INTER ALIA, challenging the refusal on the part of the appellate authority to condone the delay in maintaining the appeal under Section 107 of the WBGST Act, 2017,[Hereinafter referred to as the “said Act”] by its order dated 28th February 2024.

2. It is the petitioner’s case that being aggrieved with the determination under Section 73 of the said Act dated 23rd August, 2023, the petitioner had filed an appeal under Section 107 of the said Act. Since, the appeal was filed beyond the period of limitation the same was accompanied by an application under Section 5 of the Limitation Act, 1963. The appellate authority, however, appears to have rejected the said application for condoning the delay by its order dated 28th February 2024 and had consequentially disposed of the appeal.

3. Challenging the aforesaid rejection of the application for condonation of delay the present writ application has been filed.

4. Mr. Dutta, 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 since the appellate authority was competent to entertain the appeal beyond one month of the time prescribed, the petitioner had filed an application for condonation of delay on the ground stated therein. He submits that the appellate authority had, however, by overlooking the fact that the petitioner had made out sufficient grounds for condonation of delay by, inter alia, observing that there is no scope under the provisions of the said Act for condoning the delay beyond 4 months, had rejected the said application for condonation of delay and consequentially disposed of the appeal. According to him, the aforesaid constitutes failure on the part of the appellate authority to exercise jurisdiction so vested in it. There is nothing in the provisions of the said Act, which even impliedly bars the appellate authority from exercising its jurisdiction, to condone the delay beyond one month of the prescribed period as provided for in the said Act.

5. 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, 2023 SCC ONLINE 4759, (2024) 123 GSTR 229 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.

6. Affidavit-of-service filed in Court today is taken on record.

7. Mr. Agarwal, 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 him, 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 Act1963 may not have been expressly excluded, the same stands impliedly excluded.

8. In support of his contention, Mr. Agarwal 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 Additional Commissioner & Anr., Neutral Citation 2024-AHC 26169. He submits that the judgment delivered by the Division Bench of this Court in the case of S.K. Chakra