Penuel Nexus Pvt. Ltd., Rep. By Its ... vs The Additional Commissioner ...
2023 Latest Caselaw 6397 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
      TUESDAY, THE 13TH DAY OF JUNE 2023 / 23RD JYAISHTA, 1945
                        WP(C) NO. 15574 OF 2023
PETITIONER/S:

      PENUEL NEXUS PVT. LTD., REP. BY ITS MANAGING DIRECTOR SRI.
      M.O. JOSEPH , AGED 49 YEARS
      PENUEL NEXUS PVT. LTD., XXIII/408, KANNAPARAMPAN ARCADE,
      MARKET P O, MUVATTUPUZHA, ERNAKULAM, PIN - 686673

      BY ADVS.
      GEORGIE SIMON
      BASIL CHANDY VAVACHAN
      TRESA AUGUSTINE
      AISWARYA T.S.
      BIJU .C. ABRAHAM


RESPONDENT/S:

  1   THE ADDITIONAL COMMISSIONER HEADQUARTERS (APPEALS), ERNAKULAM
      AT MATTANCHERRY, FIRST FLOOR, BAZAAR ROAD, MATTANCHERRY,
      KOCHI - 682002

  2   STATE TAX OFFICER, TAXPAYER SERVICES CIRCLE, COCHIN STATE GST
      DEPARTMENT, MUVATTUPUZHA STATE DEPARTMENT, MINI CIVIL
      STATION, 2ND FLOOR, MUDAVOOR PO, MUVATTUPUZHA, KERALA, PIN -
      686669

      BY ADV.THUSHARA JAMES, SENIOR GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 15574 OF 2023

                             2



                                                    "C.R"


                          JUDGMENT

Can an appeal be filed beyond the time period

prescribed under Section 107 (4) of the Central Goods

and Services Tax Act, 2007 is the point posed in this

writ petition.

2. The petitioner is a firm engaged in direct

marketing. The petitioner had a GST registration. Due to

the Covid-19 pandemic, the petitioner's business got

affected and was prevented from filing the returns on

time. The respondents, by Ext.P2 order, cancelled the

GST registration. Even though the petitioner preferred

Ext.P3 appeal before the 1st respondent, by Ext.P4

order, the appeal was rejected on the ground of delay.

Exts.P2 and P4 are arbitrary and unjustifiable. Hence,

the writ petition.

WP(C) NO. 15574 OF 2023

3. Heard; Sri. Biju C.Abraham, the learned

Counsel appearing for the petitioner and Smt.Thushara

James, the learned Senior Government Pleader,

appearing for the respondents.

4. The learned Counsel for the petitioner argued

that it was only due to the Covid-19 pandemic that the

petitioner was prevented from filing the return on time.

The petitioner's appeal was perfunctorily rejected, by

the 1st respondent. Ext.P4 order is erroneous. The

learned Counsel placed reliance on the decision of the

High Court of Uttarakhand in Vinod Kumar v.

Commissioner Uttarakhand State GST and Ors.

[(2023) 109 GSTR 85] to canvass the position that as

there is an infringement of the petitioner's right to life,

this Court can set aside Exts.P2 and P4 orders under

Article 226 of the Constitution of India. He prayed that

the writ petition may be allowed.

WP(C) NO. 15574 OF 2023

5. The learned Government Pleader countered

the above submission by contending that by virtue of

Section 29(2)(c) of the Central Goods and Services Tax

Act, 2007 (in short 'Act'), the proper officer has the

power to cancel the GST registration if the registered

person does not file the returns for such continuous

period as may be prescribed, which at that point of time

was six months. If the person is aggrieved by the

cancellation, his remedy is to file an appeal under

Section 107 of the Act. However, the appeal has to be

filed within the time frame prescribed under Section

107(4) of the Act, that is, three/six months, as the case

may be, with a further period of one month. An appeal

filed beyond the permitted time can only be dismissed as

time-barred. It is in view of the above restrictive time

frame that the 1st respondent rejected the appeal. There

is no error in Ext.P4 order warranting interference by

this Court. Hence, the writ petition may be dismissed. WP(C) NO. 15574 OF 2023

6. By Ext.P2 order, the petitioner's GST

registration was cancelled on 10.08.2022. The petitioner

preferred Ext.P3 appeal on 07.03.2023, i.e., after 209

days, which is undoubtedly beyond the statutory period

fixed under Section 107 (4) of the Act.

7. Section 107(4) of the Central Goods and

Services Tax Act, 2017 reads thus:

(4) "The Appellate Authority may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months or six months, as the case may be, allow it to be presented within a further period of one month".

8. Interpreting an analogous provision under the

Central Excise Act, 1944, the Honourable Supreme

Court in Singh Enterprises v. Commissioner of

Central Excise, Jamshedpur and others [(2008) 3

SCC 70] held as follows:

"8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are not vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The WP(C) NO. 15574 OF 2023

period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short "the Limitation Act") can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days' time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period".

WP(C) NO. 15574 OF 2023

9. In CCE & Customs v. Hongo India (P) Ltd.

[(2009) 5 SCC 791], the Honourable Supreme Court,

again interpreting Section 35 of the Central Excise Act,

1944, reiterated its earlier view by holding thus:

"31. In this regard, it is useful to refer to a recent decision of this Court in Punjab Fibres Ltd. [(2008) 3 SCC 73] The Commissioner of Customs, Central Excise, Noida was the appellant in this case. While considering the very same question, namely, whether the High Court has power to condone the delay in presentation of the reference under Section 35-H (1) of the Act, the two-Judge Bench taking note of the said provision and the other related provisions following Singh Enterprises v. CCE [(2008) 3 SCC 70] concluded that : (Punjab Fibres Ltd. case [(2008) 3 SCC 73], SCC p. 75, para 8) "8. ... the High Court was justified in holding that there was no power for condonation of delay in filing reference application."

32. As pointed out earlier, the language used in Sections 35, 35-B, 35-EE, 35-G and 35-H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence WP(C) NO. 15574 OF 2023

of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days".

10. The Central Goods and Services Tax Act is a

special statute and a self-contained code by itself.

Section 107 has an inbuilt mechanism and has impliedly

excluded the application of the Limitation Act. It is trite,

that the Limitation Act will apply only if it is extended to

the special statute. It is also rudimentary that the

provisions of a fiscal statute have to be strictly

construed and interpreted.

11. On an appreciation of the language of Section

107(4) and the above analysed factual and legal

background, this Court is of the view that there is no WP(C) NO. 15574 OF 2023

illegality in the action of the 1 st respondent in rejecting

the appeal as time-barred.

          The    writ     petition   is   meritless   and   is

  consequentially dismissed.


                                             SD/-
                                            C.S.DIAS
                                             JUDGE
 rkc/13.06.23
 WP(C) NO. 15574 OF 2023






                 APPENDIX OF WP(C) 15574/2023

PETITIONER EXHIBITS

Exhibit A TRUE COPY OF THE REGISTRATION CERTIFICATE OF GST P1 REGISTRATION ISSUED TO THE PETITIONER, DATED ON 1/7/2017 (EXHIBIT P1).

Exhibit A TRUE COPY OF THE ORDER OF CANCELLATION BEARING NO. P2 ZA320922087041T ISSUED BY THE RESPONDENT, DATED ON 30/9/2022 (EXHIBIT P2).

Exhibit A TRUE COPY OF THE APPEAL FILED BY THE PETITIONER P3 BEFORE THE APPELLATE AUTHORITY ,DATED ON 07/03/2023 (EXHIBIT P3).

Exhibit A TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT P4 , DATED ON 28/3/2023 (EXHIBIT P4).