Madhya Pradesh High Court
Parihar Tent Workrs Through Proprietor ... vs Appellate Authority And Joint ... on 10 March, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:6522
1 WP-8253-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 10th OF MARCH, 2025
WRIT PETITION No. 8253 of 2025
PARIHAR TENT WORKRS THROUGH PROPRIETOR DEVENDRA
Versus
APPELLATE AUTHORITY AND JOINT COMMISIONER OF STATE
TAXES AND OTHERS
Appearance:
Shri Manish Yadav - Advocate for the petitioner.
Shri Anand Soni - Additional A.G. for respondent/State.
ORDER
Per: Justice Vivek Rusia
The petitioner has filed this present petition under Article 226 of the
Constitution of India r/w Section 107 of Central GST Act, 2017 & M.P.
GST Act, 2017 challenging the order dated 26.11.2024, whereby the
Appellate Authority & Joint Commissioner, State Tax Division-II, Indore has
dismissed the appeal as time barred in respect of Assessment Year from
01.04.2021 to 31.03.2022.
2. The petitioner is engaged in the business of tents and registered
under the Goods and Service Tax Act, 2017. The petitioner was served with
the demand notice dated 21.07.2023 by the respondent No.2 in respect of the
period from 01.04.2021 to 31.03.2022 for demand of Rs. 92,48,360/-. Being
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aggrieved by the aforesaid demand order, the petitioner preferred an appeal
to the Appellate Authority with a delay of 9 days. The petitioner filed an
application for condonation of delay however, vide impugned order dated
26.11.2024 the appeal has been dismissed. Hence, present petition before this
Court.
3. Shri Manish Yadav, learned counsel appearing on behalf of the
petitioner submits that in view of the order passed by Division Bench of this
Court in the case of Praveen Murarka Prop. M/s Modware India vs. CGST
And Central Excise And Others in W.P. No.30569/2024 dated 5.02.2025 , the
matter may be remanded back to the Appellate Authority to consider and
decide the appeal on merit.
4. Learned Additional A.G. appearing on behalf of respondent/State
has produced the copy of order dated 20.10.2021 passed in W.P. No.
13142/2021 in the case of M/s Sai Rubber works vs. State of Madhya
Pradesh and Others passed by Division Bench at Gwalior, in which it has
been held that in any condition appeal under sub-section (1) of Section 107
of the SGST Act has to be preferred within four months as outer limit. The
Division Bench has considered various judgments passed by the Apex Court
and held that the strict compliance is expected from all the authorities
concerned dealing with the matter under the fiscal statute.
We have heard learned counsel for the parties and perused the record.
5. As per sub-section (1) of Section 107 " any person aggrieved by any
decision or order passed under the Act or the State Goods and Services Tax
Act or the Union Territory Goods and Services Tax Act by an adjudicating
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authority may prefer to Appellate Authority within three months from the
date on which the decision or order is communicated to such person". As per
sub-section (4) of Section 107 " 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.
Therefore, the Appellate Authority has power to condone the delay for the
period of one month only but the provisions of the Limitation Act has not
been made applicable".
6. The Apex Court has taken a similar view in the matter of Chintels
India Limited Vs. Bhayana Builders Private Limited reported in (2021) 4
SCC 602 has held as under:-
"11. A reading of section 34(1) would make it clear that an
application made to set aside an award has to be in accordance
with both sub-sections (2) and (3). This would mean that such
application would not only have to be within the limitation period
prescribed by sub-section (3), but would then have to set out
grounds under sub-sections (2) and/or (2-A) for setting aside such
award. What follows from this is that the application itself must be
within time, and if not within a period of three months, must be
accompanied with an application for condonation of delay,
provided it is within a further period of 30 days, this Court having
made it clear that section 5 of the Limitation Act, 1963 does not
apply and that any delay beyond 120 days cannot be condoned -
see State of Himachal Pradesh v. Himachal Techno Engineers and
Anr. (2010) 12 SCC 210 at paragraph 5."
7. In application for condonation of delay, the petitioner has pleaded
that he downloaded the order for further proceedings i.e. for filing of an
appeal and in this process, there has been a delay of 95 days in filing the
appeal. The petitioner has calculated the limitation from the date of order i.e.
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21.07.2023. The petitioner has not disclosed the date on which the order was
communicated to him, therefore, the limitation is liable to be counted from
the date of order. Therefore, the Appellate Authority has no power to
condone the delay. In absence of any statutory provisions, even the High
Court cannot condone the delay beyond the period of one month.
8. In view of the aforesaid, the petition stands dismissed. No order as
to costs.
(THE CHIEF JUSTICE) (VIVEK RUSIA)
JUDGE JUDGE
Vatan
