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2024 Supreme(Online)(KER) 35186
HIGH COURT OF KERALA
GOPINATH P, J
BAIJU GEORGE – Appellant
Versus
COMMISSIONER OF GOODS AND SERVICE TAXES – Respondent
WP(C) 32538/2024
MOOSA E.S.
The court cannot extend the time limit for filing an appeal under the CGST/SGST Acts without extraordinary circumstances, and inordinate delay in filing a writ petition can lead to dismissal.
Headnote:(A) CGST/SGST Acts - Section 107 - Limitation Act, 1963 - Writ jurisdiction - Petitioner, a contractor, failed to file appeals against orders issued under CGST/SGST Acts due to technical issues, attempting to appeal almost four years later - Court held that no grounds for relief under Article 226 exist as the appeal was filed beyond the statutory time limit. (Paras 1-6)
(B) Extraordinary circumstances - The court noted that extraordinary circumstances must be demonstrated for extending time limits for appeals, which were not present in this case. (Paras 5-6)
(C) Delay in filing - The court emphasized that inordinate delay in filing a writ petition can lead to dismissal, as seen in this case where the petition was filed in 2024 for orders issued in 2020. (Paras 3, 4)
Facts of the case:
The petitioner, a contractor, faced orders under the CGST/SGST Acts for failing to file returns and sought to appeal nearly four years later, citing technical difficulties.
Findings of Court:
The court found no justification for extending the time limit for filing an appeal and dismissed the writ petition.
Issues: The main issues included whether the court could extend the time limit for filing an appeal and the implications of inordinate delay in filing a writ petition.
Ratio Decidendi: The court ruled that the petitioner failed to demonstrate extraordinary circumstances justifying the late appeal and emphasized the importance of timely filings.
Result: Writ petition dismissed.
JUDGMENT
The petitioner claims that he is a contractor engaged in doing civil work for both the Government and private sectors. The petitioner is an assessee under the CGST/SGST Acts . Owing to the failure to file returns under the CGST/SGST Acts , the petitioner suffered Ext.P2 series of orders under Section 62 of the CGST/SGST Act. These orders were issued on 11.2.2020 and 12.2.2020. According to the petitioner, the petitioner could not file any appeal against the orders for the months of January 2018, March 2018 and October 2018, as the petitioner could not download the file and proceed to file an appeal on the portal. According to the petitioner, though the petitioner took up the matter with the GST help desk even they could not resolve the problem of the petitioner. It is submitted that this Court can direct the consideration of the appeal in the exercise of Writ Jurisdiction. It is submitted that the Calcutta High Court has considered a similar issue and has held that Section 5 of the Limitation Act,1963 would apply.
2. The learned Government Pleader submits that even going by the admitted case of the petitioner, the petitioner attempted to file an appeal only in the month of December 2023 with an inordinate delay of almost 4 years considering that the orders of the Adjudicating Authority were issued in the month of February 2020. It is submitted that going by the provisions of Section 107 of the CGST/SGST Acts , no appeal could be maintained at the time when the petitioner attempted to file an appeal. It is submitted that no ground has been made out for the exercise of jurisdiction under Art.226 of the Constitution of India to enable the petitioner to file an appeal beyond the time specified by Section 107 of CGST/SGST Acts .
3. Having heard the learned counsel for the petitioner and the learned Senior Government Pleader, I am of the view that the petitioner has not made out any case for the grant of any relief under Art. 226 of the Constitution of India. Admittedly, the petitioner attempted to file the appeal against Ext.P2 series of orders only in the month of December 2023 i.e., almost four years after the date on which the orders (against which the appeal was sought to be filed) had been issued. This Court cannot, normally in the exercise of jurisdiction under Art. 226 of the Constitution of India extend the time limit for filing an appeal under Section 107 of the CGST/SGST Acts . This is clear from the law laid down inSingh Enterprises v. CCE and Ors, (2008) 3 SCC 70. The issue was considered in the context of Section 35 of the Foreign Exchange Management Act, 1999 in Ketan V. Parekh v. Enforcement Directorate , (2011) 15 SCC 30 . After considering the provisions of the Limitation Act, 1963 it was held:-
17. Section 35 of the Act as also Sections 5 , 14 and 29(1) and (2) of the Limitation Act, which have bearing on the decision of the issue raised in the appeals, read as under:
“35. Appeal to High Court.—Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law arising out of such order:
Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.
“……….”
18. The question whether the High Court can entertain an appeal under Section 35 of the Act beyond 120 days does not require much debate and has to be answered against the appellants in view of the law laid down in Union of India v. Popular Construction Co. , (2001) 8 SCC 470 , Singh Enterprises v. CCE (2008) 3 SCC 70 , CCE & Customs v. Punjab Fibres Ltd. (2008) 3 SCC 73, Consolidated Engg. Enterprises v. Irrigation Deptt., (2008) 7 SCC 169, CCE & Customs v. Hongo India (P) Ltd., (2009) 5 SCC 791 and Chhattisgarh SEB v. Centra
