Orissa High Court
M/S. Ashirbad Motors vs The Commissioner on 23 April, 2025
Author: Murahari Sri Raman
Bench: Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.5872 of 2025
M/s. Ashirbad Motors .... Petitioner
Represented by Adv.-
Mr. Abhilash Mishra, Advocate
-Versus-
The Commissioner, Commercial Tax .... Opposite Parties
(CT) and Goods and Services Tax
(GST), Cuttack and others
Represented by Adv.-
Mr. Sunil Mishra, Standing Counsel
CORAM:
HON' BLE THE CHIEF JUSTICE
AND
HON'BLE MR. JUSTICE MURAHARI SRI RAMAN
ORDER
Order No. 23.04.2025
01. 1. Challenging the order dated 31st August, 2024 passed for the
tax period April, 2019 to March, 2020 under Section 73 of the OGST
Act, appeal has been preferred on 30th December, 2024.
2. It is submitted by Mr. Abhilash Mishra, learned counsel for the
petitioner that sub-section (1) read with sub-section (4) of Section
107 of the Odisha Goods and Services Tax Act, 2017, ("OGST Act")
gives scope to the petitioner to file appeal within three months and
power is conferred on the Appellate Authority to consider
condonation of delay if the appeal is presented within a further
period of one month.
3. It appears from the Appellate Order that the authority has
computed the total period as 120 days instead of four months and
rejected the appeal construing the same to be presented beyond the
periods specified in Section 107 of the OGST Act.
4. Mr. A. Mishra, learned counsel for the petitioner places
reliance on the judgment of the Patna High Court dated 4th February,
2025 in CWJC No.14957 of 2024 (M/s. Brand Protection Services
Private Limited Company Vrs. State of Bihar and others) reported at
2025 SCC OnLine Pat 772 wherein it has been clearly laid down that
the term 'month' is to be construed as 'one calendar month'. It is
urged that in such an event, the appeal memo being filed before the
Appellate Authority on 30th December, 2024, and three months if
counted from the date of adjudication order dated 31st August, 2024,
total period of four months as per sub-section (1) and sub-section (4)
of Section 107 taken together would have lapsed on 30th December,
2024. Since the petitioner has filed appeal on 30.12.2024, the same
should have been considered to have been filed within the
condonable period. Therefore, it is submitted that the Appellate
Authority has erroneously proceeded to reject the appeal.
5. Mr. Sunil Mishra, learned Standing Counsel for the State
revenue does not dispute that under sub-section (1) of Section 107,
the appeal was required to be filed within three months. Under sub-
section (4), the Appellate Authority is competent to consider the
petition for condonation of delay for further period of one month.
6. Considered carefully the contentions of the counsel for the
respective parties. This Court takes into aid of State of W.B. Vrs.
Rajpath Contractors & Engineers Ltd., (2024) 7 SCC 257 wherein it
has been held that,
"8. As per Section 12(1) of the Limitation Act, the day
from which the limitation period is to be reckoned must be
excluded. In this case, the period of limitation for filing a
petition under Section 34 will have to be reckoned from
30.06.2022, when the appellants received the award. In view of
Section 12(1) of the Limitation Act, 30.06.2022 will have to be
excluded while computing the limitation period. Thus, in effect,
the period of limitation, in the facts of the case, started running
on 01.07.2022. The period of limitation is of three months and
not ninety days. Therefore, from the starting point of
01.07.2022, the last day of the period of three months would be
30.09.2022. As noted earlier, the pooja vacation started on
01.10.2022."
Having noticed many decisions, in M/s. Brand Protection
Services Private Limited Company Vrs. State of Bihar and others,
2025 SCC OnLine Pat 772 reference has been made to State of
H.P. Vrs. Himachal Techno Engineers, (2010) 12 SCC 210 and the
Patna High Court held,
"24. In yet another case of Himachal Techno
Engineers (supra), the same question fell for consideration in
relation to Section 34(3) and its proviso under the Arbitration
and Conciliation Act, 1996. Paragraph '14', '15' and '16' of
the judgment in case of Himachal Techno Engineers (supra)
are being reproduced hereunder for a ready reference:
'14. The High Court has held that "three months"
mentioned in Section 34(3) of the Act refers to a period of
90 days. This is erroneous. A "month" does not refer to a
period of thirty days, but refers to the actual period of a
calendar month. If the month is April, June, September or
November, the period of the month will be thirty days. If
the month is January, March, May, July, August, October
or December, the period of the month will be thirty-one
days. If the month is February, the period will be twenty-
nine days or twenty-eight days depending upon whether it
is a leap year or not.
15. Sub-section (3) of Section 34 of the Act and the
proviso thereto significantly, do not express the periods of
time mentioned therein in the same units. Sub-section (3)
uses the words "three months" while prescribing the
period of limitation and the proviso uses the words "thirty
days" while referring to the outside limit of condonable
delay. The legislature had the choice of describing the
periods of time in the same units, that is, to describe the
periods as "three months" and "one month" respectively
or by describing the periods as "ninety days" and "thirty
days" respectively. It did not do so. Therefore, the
legislature did not intend that the period of three months
used in sub-section (3) to be equated to 90 days, nor
intended that the period of thirty days to be taken as one
month."
7. Taking cue from the above, it can safely be said that the appeal
in question has been filed within the condonable period of one month
as specified in sub-section (4) of Section 107 of the OGST Act. In
view of the submissions made at the Bar and taking into
consideration the date of order dated 31st August, 2024 and the date
of filing of appeal on 30th December, 2024, it can safely be said that
the approach of the Appellate Authority was erroneous. Thus, this
Court is of the opinion that the appeal was filed within the period
specified under sub-section (1) and sub-section (4) of Section 107
taken together, i.e., 3 months + 1 month.
8. Under the aforesaid premise, the order dated 6th February,
2025 passed by the Appellate Authority is hereby set aside and the
Appellate Authority is directed to consider the petition for
condonation of delay accompanied by memo of appeal afresh with
the parameters as stipulated under sub-section (4) of Section 107 of
the OGST Act. It is made clear that this Court has not expressed any
opinion on the merit of the petition for condonation of delay.
9. With the aforesaid observation, the writ petition stands
disposed of.
(Harish Tandon)
Chief Justice
(M.S. Raman)
Judge
S.K. Guin/PA
S.K. Behera
Designation: Personal Assistant
Location: High Court of Orissa, Cuttack
Date: 25-Apr-2025 18:43:48
