The Appellate Authority under the Jammu & Kashmir Goods and Services Tax Act, 2017 cannot condone delay in filing appeals beyond the statutory limit of one month after three months, as the Act excludes the applicability of Section 5 of the Limitation Act.

JUDGMENT :

Sanjeev, J.

1. The petitioners in all these petitions are dealers registered under Jammu & Kashmir Goods and Services Tax Act, 2017 [“the Act of 2017”] under different registration numbers. They were assessed by the respective adjudicating authority under Section 73/74 of the Act of 2017 and certain demands were raised against them. Feeling dissatisfied and aggrieved by the orders passed by the adjudicating authorities, the petitioners preferred statutory appeals before the Appellate Authority under Section 107 of the Act of 2017. The appeals preferred by the petitioners-assessees were not entertained and rejected indicating the reason for rejection as “delay in submission of appeals”

2. Since the Government is yet to constitute Appellate Tribunal, as such, the petitioners, feeling aggrieved by rejection of their appeals, are before us invoking extraordinary writ jurisdiction vested in this Court under Article 226 of the Constitution of India.

3. Learned Advocate General appearing for the respondents raises a preliminary objection to the maintainability of these petitions. He would argue that under Section 107 of the Act of 2017 any decision or order passed by the adjudicating authority may be appealed before the Appellate Authority within three months from the date of such decision or order and in terms of Subsection (4) of Section 107, the Appellate Authority is conferred discretion to condone delay of one month from the date of expiry of limitation period of three months prescribed under Subsection (1) of Section 107. He would, therefore, urge that the appeals preferred by the petitioners before the Appellate Authority after a gap of more than four months from the date of passing of the orders by the adjudicating authorities were patently time barred and the Appellate Authority committed no illegality or irregularity in rejecting such appeals.

4. Meeting the argument of the learned Advocate General, learned counsel appearing for the petitioners would submit that in the absence of specific exclusion of applicability of the Limitation Act, Section 29 of the Limitation Act would come into play and the Appellate Authority would be well within its power to condone the delay even beyond the period of four months by exercising its jurisdiction under Section 5 of the Limitation Act.

5. In view of the rival contentions and the law cited in support thereof by the learned counsel appearing on both the sides, a question of seminal importance has arisen for consideration, which reads thus:

“Whether the Appellate Authority under Subsection (4) of Section 107 of the Act of 2017 is competent to condone the delay in filing an appeal against a decision or order passed under the Act by an adjudicating authority beyond a period of one months after the expiry of three months’ period prescribed for filing appeal under Subsection (1) of Section 107 of the Act of 2017?

6. This question would bring forth the debate as to whether by the aid of Section 29 of the Limitation Act, Section 5 of the Limitation Act would be applicable to the appeals filed under Section 107 of the Act of 2017. Relevant extract of Section 107 of the Act of 2017 is reproduced hereunder:-

107. Appeals to Appellate Authority.— (1) Any person aggrieved by any decision or order passed under this Act or the Central Goods and Services Tax Act by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person.

(2) The Commissioner may, of his own motion, or upon request from the Commissioner of central tax, call for and examine the record of any proceeding in which an adjudicating authority has passed any decision or order under this Act or the Central Goods and Services Tax Act, for the purpose of satisfying himself as to the legality or propriety of the said decision or order and may, by order, direct any officer subordinate to him to apply to the Appellate A