30.01.2023: No Coercive Measure Can Be Taken Against The Assessee Till The Disposal Of Appeal If Mandatory Pre-deposit Of Ten Percent Has Been Complied With – Appeal Filed After Condonable Period Order To Be Considered – Calcutta High Court

The Hon’ble High Court of Calcutta vide its order dated 20.01.2023 in the matter of Kajal Dutta Vs. Assistant Commissioner Of State Tax, Suri Charge & Ors. in M.A.T. No. 1924 of 2022 with I.A. CAN – 1 of 2022, held that the assessee has not deliberately delayed the filing of appeal and therefore, exercising the writ jurisdiction, the Hon’ble Court ordered for considering the appeal filed after the condonable period.  Further, no coercive action can be taken against the assessee till the disposal of the appeal, if the assessee has complied with mandatory pre-deposit of 10% of the disputed tax. 

The Appellant/writ petitioner filed the intra-Court before the Hon’ble High Court against the order dated 18th November, 2022 passed by the learned Single Bench in W.P.A. No. 22764 of 2022, whereby the learned Single Bench declined to interfere with the order passed by Senior Joint Commissioner of Commercial Taxes (Appellate Authority under the provisions of GST), Durgapur Circle dated 17th August, 2022.

Held: –

  • The Hon’ble High Court after considering the submissions made, facts of the case and the documents annexed to the stay application, found that the appellant/writ petitioner could not filed the appeal on account of illness for which a doctor’s certificate has also been enclosed. Further this stand of the appellant that he was sick and unable to take steps to file the appeal within the period of limitation has not been disputed by the revenue.
  • It was found by the Hon’ble Court that the Appellate Authority was of the view that the period of one month beyond the statutory period of limitation was available, which expired on 30th June, 2022, and the appeal was filed on 17th August, 2022. Therefore, the appeal is barred by law of limitation.
  • It was found by the Hon’ble Court that it is true that in terms of Section 107(1) read with Section 107(4) of the G.S.T. Act, the time lime for preferring the appeal beyond the period of three months is 30 days, however, the statute does not state that beyond the said date, the appellate authority cannot exercise jurisdiction.
  • Further, it is not a case where the appellant had deliberately not presented the appeal beyond the condonable period. Therefore, while exercising jurisdiction under Article 226 of the Constitution this Court can examine the factual circumstances and grant appropriate relief as the appellate remedy is a very valuable remedy.  Thus, for such reason, the Hon’ble Court was inclined to exercise discretion.
  • The Hon’ble Court with the aforesaid discussions, allowed the appeal and set aside the order passed in the writ petition and consequently, the writ petition is also allowed and the order passed by the appellate authority dated 17th August, 2022 is set aside and the delay in filing the appeal before the appellate authority is condoned and the appellate authority is directed to consider and decide the appeal on merits in accordance with law after affording opportunity of personal hearing to the authorised representative of the appellant.
  • The Hon’ble Court after considering the submission made on the behalf of the appellant that ‘garnishee proceedings have been initiated by the authorities by way of attachment of appellant’s bank account’, found that the appellant while filing the appeal had complied with the mandatory pre-deposit of 10%, hence, no coercive action should be taken against the appellant till disposal of appeal. The appellant is granted liberty to file an appropriate interim application in the appeal petition and the appellate authority shall consider the same and pass appropriate orders for the purpose of lifting the garnishee order and the bank attachment.

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