Patna High Court
Tuntun Kumar vs The State Of Bihar on 24 January, 2024
Bench: Chief Justice, Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9353 of 2023
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Tuntun Kumar Son of Surendra Prasad, Resident of Village- Diha, P.S.-
Ariyari, District- Sheikhpura.
... ... Petitioner/s
Versus
1. The State of Bihar through the State Tax Commissioner-cum-Secretary,
Government of Bihar, Patna.
2. The Additional Commissioner, State Tax (Appeal), Bhagalpur Division,
Bhagalpur.
3. The Assistant Commissioner, State Tax, Lakhisarai Circle.
4. The Executive Engineer, Rural Works Department, Sheikhpura, District-
Sheikhpura.
5. The Senior Branch Manager, State Bank of India (A.D.B.), Station Road,
Sheikhpura.
6. The Senior Branch Manager, H.D.F.C. Bank, Chandani Chowk, Sheikhpura.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Pramod Kumar, Advocate
For the Respondent/s : Mr.Raghwanand (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 : 24-01-2024
The petitioner is before this Court since he filed a
delayed appeal which is said to have been rejected by
Annexure-7 for reason of the appeal having not been filed
within the period of limitation. Section 107 of the BGST Act
provides for three months time to file an appeal and a further
time of one month in which an appeal could be filed with
Patna High Court CWJC No.9353 of 2023 dt.24-01-2024
2/5
satisfactory explanation, for the delay occasioned.
2. The appeal filed in the above case, rejected by
Annexure-7 was beyond even the one month period provided
under Section 107 of the BGST Act. This Court and the Hon'ble
Supreme Court have held that when there is a specific period
provided in the statute, within which period a delayed appeal
could be filed; then neither the Appellate Authority nor this
Court under Article 226 of the Constitution of India could
condone the delay beyond the period provided.
3. The Central Board of Indirect Taxes and Customs
has by Notification No. 53 of 2023- Central Tax, dated
02.11.2023
(S.O. 4767(E)) extended the time for filing appeal
against an order passed by the Proper Officer on or before
31.03.2023 under Sections 73 and 74 of the BGST Act. This in
fact extends the period for filing a delayed appeal beyond the
one month period as provided under Section 107(4) of the
BGST Act, on following the special procedure prescribed under
the said Notification.
4. The special procedure prescribed under the
Notification is seen from paragraph no. 2 to 6 which are
extracted hereunder:-
2. The said person shall file an appeal
against the said order in FORM GST APL-01 in
Patna High Court CWJC No.9353 of 2023 dt.24-01-2024
accordance with sub-section (1) of Section 107 of
the said Act, on or before 31st day of January 2024:
Provided that an appeal against the
said order filed in accordance with the provisions
of section 107 of the said 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.
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.
5. Hence an appeal against an order under Section 73
Patna High Court CWJC No.9353 of 2023 dt.24-01-2024
or 74 has to be filed on or before 31.01.2024, and any appeal
filed which is pending before the authority could also be
considered as properly filed, even if there is delay in such filing.
6. However, the maintainability of the appeal is
further regulated by paragraph no. 3 which require that the
admitted tax, interest, fine, fee and penalty arising from the
impugned order is paid up along with a sum equal to 12.5% of
the remaining amount of tax in dispute arising from the said
order subject to a maximum of twenty-five crore rupees; out of
which 12.5%, 20% should have been paid by debiting from the
Electronic Cash Ledger. The further conditions in paragraph no.
4 to 6 also shall be applicable.
7. In the present case, the appeal was filed and was
dismissed by the first Appellate Authority. In such
circumstances, it is only proper that the appeal be restored to the
files of the Authority subject to the conditions under paragraph
no. 3 being satisfied.
8. Hence the petitioner would be entitled to satisfy
paragraph no. 3 of the aforesaid Notification by paying up the
deficient amounts as would be required to maintain the appeal
under the notification.
9. We specifically say the deficient amount, since on
Patna High Court CWJC No.9353 of 2023 dt.24-01-2024
filing the appeal 10% of the amount of tax in dispute arising
from the order impugned would/ought to have been remitted.
10. We set aside the impugned order dated 17.11.2022
at Annexure-7 on condition of the assessee satisfying the
aforesaid conditions before the time stipulated in Notification;
i.e. 31.01.2024, in which event, the appeal would be taken up
and considered on merits. And if the conditions are not satisfied,
then necessarily the impugned order would stand restored.
11. We allow the writ petition on the above terms.
(K. Vinod Chandran, CJ)
( Rajiv Roy, J)
Sujit/-
AFR/NAFR NAFR
CAV DATE
Uploading Date 26.01.2024
Transmission Date
