Patna High Court
M/S Prince Sanitation vs The State Of Bihar on 7 December, 2023
Bench: Chief Justice, Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.17202 of 2023
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M/s Prince Sanitation Gandhi Path, Ward No-8, Saharsa, through its
proprietor Prashant Kumar, Male, aged about 24 years, S/o Ajay Kumar Sah,
R/o Dharmsala Road, Shiv Shakti Machineries, Ward No-20, Saharsa, Bihar.
... ... Petitioner/s
Versus
1. The State of Bihar through the Commissioner cum Secretary, Commercial
Tax Department, Govt. of Bihar, Patna.
2. The Commissioner cum Secretary, Commercial Tax Department, Govt. of
Bihar, Patna.
3. The Additional Commissioner of State Tax (Appeals), Purnia Division,
Purnia, Bihar.
4. The Joint Commissioner of State Tax, Saharsa Circle, Saharsa, Bihar.
5. The Assistant Commissioner of State Tax, Saharsa Circle, Saharsa, Bihar.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Gyan Shankar, Adv
Mr.Abhinav Alok, Adv
For the Respondent/s : Mr.Raghwanand (GA11)
Mr.Pratik Kumar, AC to GA 11
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJIV ROY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 07-12-2023
The petitioner is before this Court challenging an
order in appeal, which rejected the appeal for reason of delay of
five days.
2. Section 107(4) of the B.G.S.T. Act clearly
stipulates a period of three months time for an appeal to be filed
and a further period of one month within which a delayed
appeal has to be filed. Going by the statutory provisions, there is
Patna High Court CWJC No.17202 of 2023 dt.07-12-2023
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absolutely no power vested either in the Appellate Authority or
in a Constitutional Court acting under Article 226 to extend the
period of limitation, especially when there is a specific
stipulation and period prescribed for the purpose of filing a
delayed appeal.
3. However, we see that the Central Board of
Indirect Taxes and Customs has brought out a notification dated
02.11.2023
bearing no. 53 of 2023- Central Tax hereunder:
MINISTRY OF FINANCE
(Department of Revenue)
(CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS)
NOTIFICATION
New Delhi, the 2nd November, 2023
No. 53/2023- CENTRAL TAX
S.O. 4767(E).-In exercise of the powers
conferred by section 148 of the Central Goods and Services
Tax Act, 2017 (12 of 2017) (hereinafter referred to as the
said Act), the Central Government, on the recommendations
of the Council, hereby notifies taxable persons who could
not file an appeal against the order passed by the proper
officer on or before the 31st day of March, 2023 under
section 73 or 74 of the said Act (hereinafter referred to as
the said order), within the time period specified in sub-
section (1) of section 107 read with sub-section (4) of
section 107 of the said Act, and the taxable persons whose
appeal against the said order was rejected solely on the
grounds that the said appeal was not filed within the time
period specified in section 107, as the class of persons
(hereinafter referred to as the said person) who shall follow
Patna High Court CWJC No.17202 of 2023 dt.07-12-2023
the following special procedure for filing appeals in such
cases:
2. The said person shall file an appeal against the
said order in FORM GST APL-01 in accordance with sub-
ection (1) of Section 107 of the said Act, on or before 31 st
day of January 2024:
Provided that an appeal against the said order filed
in accordance with the provisions of section 107 of the Act,
and pending before the Appellate Authority before the
issuance of this notification, shall be deemed to have been
filed in accordance with this notification, if it fulfills the
condition specified at para 3 below.
3. No appeal shall be filed under this notification,
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 twelve and a half 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, out of
which at least twenty percent should have been paid by
debiting from the Electronic Cash Ledger.
4. No refund shall be granted on account of this
notification till the disposal of the appeal, in respect of any
amount paid by the appellant, either on their own or on the
directions of any authority (or) court, in excess of the
amount specified in para 3 of this notification before the
issuance of this notification, for filing an appeal under sub-
section (1) of Section 107 of the said Act.
5. No appeal under this notification shall be admissible
in respect of a demand not involving tax.
Patna High Court CWJC No.17202 of 2023 dt.07-12-2023
6. The provisions of Chapter XIII of the Central Goods
and Service Tax Rules, 2017 (12 of 2017), shall mutatis
mutandis, apply to an appeal filed under this notification.
[F. No. CBIC-20001/10/2023-GST]
RAGHAVENDRA PAL SINGH, Director
4. The difficulty insofar as its application to the
petitioner's case is the date on which the proper officer, being
the Assessing Officer, having passed the order which was
challenged in appeal, on 27.04.2023. The notification which was
brought out on 02.11.2023 only permits appeals to be filed from
orders passed by the proper officer on or before 31.03.2023, in
cases in which it was not instituted in time or within the time
permitted for a delayed appeal, and in cases where such delayed
appeals beyond the stipulation in 107(4) has been rejected. The
petitioner would not squarely fall under the notification.
5. We do not see any rationale for the date fixed of
31.03.2023, as a cut off date. We notice that the notification
itself was brought out on 02.11.2023 and in such circumstances
any order passed in at least three months before that date; the
time provided for filing an appeal, ought to have been
considered for such beneficial treatment.
6. In the above circumstances, we are of the opinion
that the petitioner also can be allowed to comply with the
Patna High Court CWJC No.17202 of 2023 dt.07-12-2023
conditions in Notification No. 53 of 2023 upon which the order
passed in appeal would stand set aside and a fresh consideration
will be made by the first Appellate Authority. If the petitioner
fails to fulfill the criteria as stated in the notification, then the
impugned order will operate.
7. We allow the writ petition with the above directions.
(K. Vinod Chandran, CJ)
( Rajiv Roy, J)
uttam/-
AFR/NAFR
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