The Andhra Pradesh High Court has held that the GST appellate authority under Section 107 of the Andhra Pradesh Goods and Service Tax Act (APGST Act) does not have any power to condone the delay in filing an appeal, under Section 107 of the APGST Act, beyond the period of 30 days set out in Section 107(4) of the APGST Act.
The bench of Justice R Raghunandan Rao and Justice Harinath.N has observed that section 107 (4) authorises the appellate authority to receive appeals, beyond the above periods, if the appellate authority is satisfied that the appellant was prevented, by sufficient cause, from presenting the appeal within the prescribed time. However, the power to permit filing of appeals beyond the prescribed time is restricted to condoning delay of one month only.
The petitioners/assessee challenged the orders of the assessing authorities by way of filing appeals, before the appellate authorities, under section 107 of the Central Goods and Service Tax Act. However, the appeals were filed beyond the period of limitation set out under the GST Act and the period of delay for which the appellate authority is empowered, under section 107 (4), to condone. These appeals were dismissed on the ground that they had been filed beyond limitation and cannot be considered.
The petitioners submitted that even though Section 107 (4) empowers the appellate authority to permit condonation of delay for a period of one month beyond the statutory period of three months or six months provided under Section 107(1) and (2), the provisions of Section 29(2) of the Limitation Act, 1963 would permit the appellate authority to condone the delay beyond the period provided under Section 107 (2) or (3).
The department relied upon the Supreme Court’s judgement in the case of Assistant Commissioner vs. Glaxo Smith in which it was held that there is an implied exclusion of Section 5 of the Limitation Act and as such the appellate authority, under Section 107 (4) of the CGST Act, does not have power to condone the delay of filing of appeals beyond the additional period of one month.
The court noted that where a special or local law, by express statement excludes all or any of Sections 4 to 24 of the Limitation Act, they cannot be applied to any proceedings under such special or local law. Where exclusion is to deduced, by way of necessary implication, each provision would have to be considered separately and exclusion of one provision would not result in exclusion of the other provisions of section 4 to 24 of the limitation Act.
Section 107 provides for an appeal against orders passed under the APGST Act, stipulates that an appeal, under Section 107, by a dealer against any order of an adjudicating authority, can be filed within three months from the date on which the order is communicated; an appeal, under Section 107 (2), by an authority under the Act, against any order of an adjudicating authority, can be filed within six months from the date on which the order of the Chief Commissioner directing the filing of such an appeal is received by the said authority.
Section 107 (4) authorizes the appellate authority to receive such appeals, beyond the above periods, if the appellate authority is satisfied that the appellant was prevented, by sufficient cause, from presenting the appeal within the prescribed time. However, this power to permit filing of appeals beyond the prescribed time is restricted to condoning delay of one month only.
The court while dismissing the petition held that since the period of limitation available, under Section 107 of the APGST Act, cannot be extended beyond the stipulated period, Section 5 of the Limitation Act would stand excluded.
Case Title: M/s. Venkateswara Rao Kesanakurti Versus The State of Andhra Pradesh
Case No.: Writ Petition Nos:13662, 13712 & 14803 Of 2024
Date: 23.08.2024
Counsel For Petitioner: Jyothi Ratna Anumolu
Counsel For Respondent: T.C.D. Sekhar
