IN THE HIGH COURT AT CALCUTTA

Constitutional Writ Jurisdiction

Appellate Side Ct.551 03.11.25

M/l.

Item No.8 Sws.M

WPA 19676 of 2025

Barjinder Singh Kohli

Vs

The Assistant Commissioner of Revenue & Ors.

Mr. Sandip Choraria

Mr. Akash Chakraborty

Mr. Rishav Manna …for the petitioner

Mr. Tanoy Chakaborty

Mr. Saptak Sanyal

….for the State

1. The petitioner is aggrieved by an order dated May 15,

2025 passed by the Appellate Authority under Section 107 of the WBGST Act, 2017 read with

Section 107 of CGST Act, 2017.

2. The Appellate Authority has dismissed the

petitioner’s appeal on the ground of delay and non- compliance with the condition of statutory pre-

deposit.

3. The adjudication order passed under Section 74 of

the said 2017 Act is dated January 7, 2025 and therefore an appeal preferred thereagainst would have been within time, if the same had been filed within April 7, 2025. The petitioner, however, lodged the appeal before the appellate authority on April 26, 2025, that is beyond the period of three monthsspecified in Section 107(1) of the 2017 Act but within the condonable period of one month in

terms of Section 107(4) of the said Act of 2017. The petitioner while preferring such appeal did not put in any pre-deposit since the order impugned before the appellate authority only determined interest and penalty payable by the petitioner. It is the petitioner’s case that as the petitioner has already paid the taxes through DRC-03 on March 12, 2021, and the adjudication order shows “Nil” tax liability/demand no pre-deposit was required to be put in. It is submitted that the marginal delay occasioned in preferring the appeal should have been condoned.

4. The Appellate Authority has however refused to condone such delay and has rejected the appeal on the twin grounds as stated hereinabove, with the following observations:

“Whereas, the appellant was asked on

07.05.2025 to show cause positively by 14.05.2025, as to why the aforesaid appeal application will not be rejected owing to the aforementioned deficiency of late filing of the appeal application under sub-section (1) & (4) of section 107 of the aforesaid Acts and also the deficiency of non-payment of the pre- appeal deposits under sub-section (6) of section 107 of the aforesaid Acts; and Whereas, the appellant has neither filed any reply to the aforesaid Show Cause Notice dated 07.05.2015 nor has he prayed for further time; and Therefore, the instant appeal application is rejected for violation of the provisions of sub-section (1), (4) & (6) of section 107 of the foresaid Acts.”

5. Section 107(6) of the said 2017 Act as on the date when the appeal had been preferred providedas follows:

“107(6) No appeal shall be filed under sub-section (1), unless the appellant has paid –

(a) In full, such part of the amount of tax, interest, fine, fee and penalty arising from the impugned order, as is admitted by him; and (b) A sum equal to ten per cent of the remaining amount of tax in dispute arising from the said order, [subject to a maximum of twenty-five crore rupees,] in relation to which the appeal has been filed:

[Provided that no appeal shall be filed against an order under sub-section (3) of section 129, unless a sum equal to twenty-five per cent of the penalty has been paid by the appellant]”

6. It is evident from the above that there was no requirement for making any pre-deposit in cases where the appeal was carried against an order pertaining only to penalty and there being no amount of tax in dispute.

7. It is well settled that right to prefer appeal is a substantive right. It is equally settled that when a statute provides for a right to prefer appeal, it can also limit or restrict such right by imposing appropriate conditions. Requirement of pre-deposit for filing appeal under Section 107(6) of the 2017 Act is one such condition. The opening words of Section 107(6) of the 2017 Act “No appeal shall be filed…..” indicate that the condition of pre-deposit is attached to the filing of the appeal. It is a pre