A division Bench of J&K High Court comprising Justice Sanjeev Kumar and Justice Rajesh Sekhri has reiterated that The Appellate Authority cannot condone the delay in preferring an appeal under section 107 of J&K GST Act. But the High Court in Exercise of Extraordinary Jurisdiction under Article 226 Can in Exceptional Circumstances Condone The Delay Occasioned in Filing An Appeal Against The Order Of Adjudicating Authority Beyond a Period of One Month After The Expiry Of Three Months Prescribed Under Section 107 of CGST ACT.
The Court had earlier in a batch of petitions ( WP(C) No 1413/2024 along with connected petitions decided on13.08.2024) set at rest the following issues:
(i) Whether the Appellate Authority under Subsection (4) of Section 107 of the Act of 2017 is competent to condone the delay in filing an appeal against a decision or order passed under the Act by an adjudicating authority beyond a period of one months after the expiry of three months’ period prescribed for filing appeal under Subsection (1) of Section 107 of the Act of 2017? and
(ii) even if the appellate authority does not have power to condone the delay beyond the period of thirty days as prescribed under Subsection (4) of Section 107 of the Act of 2017, this Court, in the exercise of its extraordinary jurisdiction vested under Article 226 of the Constitution of India, can direct such condonation of delay, if it is satisfied that a case of exceptional nature is made out for such condonation of delay or that the interest of justice would warrant condoning the delay.
The court has held that “The appellate authority cannot entertain an appeal under Section 107 of the Act of 2017 against a decision or order of the adjudicating authority, if it is filed beyond the period of four months from the date such decision or order is communicated to the person aggrieved.
Sub-section (1) of Section 107 prescribes period of limitation for presenting such appeal(s) as three months. However, Subsection (4) of Section 107 gives discretion to the appellate authority to condone the delay beyond the period of limitation prescribed under Subsection (1) provided it is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period of three months. However, such discretion is confined to condoning the delay to the maximum period of thirty days and not beyond that. By making such provision in Subsection (4), the legislature has foreclosed the further discretion of the appellate authority to condone the delay beyond the period of thirty days even by the aid of Section 29 of the Limitation Act. The scheme of the Act of 2017, in particular, provisions of Section 107(4) expressly exclude the applicability of Section 5 of the Limitation Act.
The periods of limitation are procedural in nature. Therefore, the prohibition contained in Section 107(4) of the Act of 2017 to condone delay beyond one month cannot come in the way of Constitutional Court exercising extraordinary jurisdiction to render substantial justice. Therefore, while a statutory prohibition is a strong consideration to be kept in mind, yet it does not bar the jurisdiction of the High Court to condone the delay if it is of the opinion that application of delay barring statute would result in gross injustice. Each case is, thus, required to be evaluated on its specific facts and circumstances.
While finding no plausible excuse so as to bring the same within exceptional circumstances for condoning the delay in preferring an appeal the court refused to interfere with the impugned orders and while dismissing a batch of petitions the court observed that The assessment order passed by the adjudicating authority under the Act of 2017 cannot be kept open ended for indefinite period and the timelines prescribed in the statute are required to be respected and complied with.
