No, the Honorable High Court in the case of JyanataGhosh v. State of West Bengal [Writ Petition Application No. 230 of 2024 dated 05.03.2024] held that an Appellate Authority cannot dismiss an appeal on the ground of limitation without affording any opportunity of hearing. The delay can be condoned if the principles of natural justice has been violated by not providing an opportunity for hearing to the Petitioner. The Honorable Calcutta High Court held that the Respondent should have given personal hearing to the Petitioner and decided appeal on merits. The Honorable Court relied on Murtaza B Kaukawala v. State of West Bengal [MAT 1361 of 2023 dated 18.10.2023] wherein the Calcutta High Court held that delay can be condoned if the principles of natural justice have been violated by not providing the opportunity of hearing to the petitioner. Further relied on S.K. Chakraborty & Sons v. Union of India [MAT 81 of 2022] wherein the Calcutta High Court held that once provisions of Section 5 of the Limitation Act, 1963 have not been expressly or impliedly excluded by Section 107 of the CGST Act, by virtue of Section 29(2) the Limitation Act, 1963. Section 5 of the Limitation Act, 1963, stand attracted The Honorable Court held that the delay in filing of the appeal was condoned and the writ petition is allowed by setting aside the impugned Order dated 17.01.2024.
Author’s Comments
Belated appeals are permitted up to a maximum of one month under section 107(4) after the end of the due date for filing an appeal under section 107(1) or (2/3). Appellate Authority has power to condone delay, but this power cannot be expected by the Appellant to be exercised in a routine manner and automatically condone the delay. Limitation Act, 1963 states in section 5 and 14 that “sufficient cause” must be show to justify the delay.
The principle of law is that when the time to file an appeal lapses, the counterparty gets a visited right (or advantage or benefit from such failure) which cannot be denied by condonation of appeal in a routine and mechanical manner without ‘good and sufficient’ reasons.
When an appeal is filed after the period of condonation permitted in section 107(4), the Appellate authority does not have statutory authority to condone the delay, not even if the reasons are ample and deserve to be entertained. The appeal must be dismissed for being fatally belated because the Legislature has allowed Appellate authority this much authority and not more.
The Honorable Apex court has declared in Singh Enterprises v. CCE 2008 (221) ELT 163 that where the period of limitation is specifically provided in the statute admitting appeals albeit for ‘sufficient cause’ would render statutory provisions impossible. And Appellate Authority thus being the denuded of authority to condone (due to lapse of maximum time permitted) is barred and examining the cause, must less its sufficiency.
Share this content: