Dismissed

M/S Bismilla Earth Movers v. State of Karnataka

Karnataka HC13 Oct 2023WP/103626/2023

Case brief

AI extract

What is this about?

Single Judge dismissed a writ petition challenging an appellate order. The court held that under Section 107 of the KGST Act, the appellate authority lacks jurisdiction to condone delays exceeding the 60-day stipulation plus 30-day extension. Following a binding Apex Court precedent, unreported judgments of this Court cannot be used to relax statutory limitation periods.

What did the court decide?

The writ petition was dismissed with no order as to costs. It was found to be devoid of merits on the question of limitation.

M/S Bismilla Earth Movers Vs State of Karnataka — GST and Indirect Tax | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO. 103626 OF 2023

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BETWEEN:

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M/S. BISMILLA EARTH MOVERS, DOOR NO. 213, 14^TH WARD, TEACHERS COLONY, NEAR KRUPA SCHOOL, SANDUR, BELLARY DISTRICT-583 119, KARNATAKA. REPRESENTED BY ITS PROPRIETOR: SRI CHOPDAR HASSAIN, S/O. C. ABDUL SAB, OCCUPATION: BUSINESSMEN, AGED ABOUT 49 YEARS, R/O: DOOR NO. 213, 14^TH WARD, TEACHERS COLONY, NEAR KRUPA SCHOOL, SANDUR, BELLARY DISTRICT-583 119, KARNATAKA. ...PETITIONER (BY SRI RENUKAPRASAD C.M., ADVOCATES)

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AND:

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STATE OF KARNATAKA

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YASHAVANT NARAYANKAR REPRESENTED BY ITS SECRETARY, DEPARTMENT OF FINANCE, VIDHANA SOUDHA, BENGALURU-560 001.

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Digitally signed by YASHAVANT NARAYANKAR Date: 2023.11.10 2. THE JOINT COMMISSIONER OF COMMERCIAL TAXES, 16:00:08 +0530 APPEAL, DAVANGERE DIVISION, VAJIYA TERIGE BHAVANA, ‘A’ BLOCK, DEVARAJ URS LAYOUT, DAVANGERE-577 002.

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THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES, AUDIT-1, VAJIYA TERIGE BHAVANA, DEVARAJ URS LAYOUT, ‘A’ BLOCK, DAVANGERE-577 002. …RESPONDENTS

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(BY SRI SHIVAPRABHU S. HIREMATH, AGA)

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THIS WRIT PETITION FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF CERTIORARI OR A DECLARATION IN THE NATURE OF WRIT OF CERTIORARI FOR QUASHING THE ORDER OF RESPONDENT NO.2 BEARING T. NO. 167/23-24 DATED 03.06.2023 AS PER ANNEXURE-D BY THE RESPONDENT N.2.

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THIS PETITION, HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 28.08.2023 COMING ON FOR PRONOUNCEMENT, THIS DAY, THE COURT PASSED THE FOLLOWING:

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ORDER

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The Division Bench of this court in W.A.No.100412/2023

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has set aside the order passed by the learned Judge and the matter is remitted back to rehear the matter and pass fresh order by taking note of the judgment rendered by Division Bench of this court in Simplex Infrastructures Ltd. and Another Vs. The Joint Commissioner and

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Others (W.A.No.942/2021) .

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After remand, the matter is taken up for

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hearing.

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Heard the learned counsel for the petitioner and

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learned AGA for the respondents. I have given my anxious consideration to the judgment cited by the learned counsel for the petitioner and judgment cited by learned AGA.

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The petitioner is assailing the order passed by

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respondent No.2-appelalte authority and has preferred second appeal under Section 109 of the Central Goods and Services Tax Act, 2017 (hereinafter referred to the CGSC Act of 2017). The petitioner has questioned the order of the appellate authority under Section 107 wherein appellate authority has declined to entertain the appeal on the ground of delay. This Court having found that appeal is preferred appeal beyond the period of one month as prescribed under Section 107(1) of KGST Act, 2017, placing reliance on the judgment rendered by the Apex Court in the case of National Spot Exchange Limited Vs Mr.Anil Kohli, Resolution Professional for Dunar Foods Limited in Civil Appeal No.6187/2019 has affirmed the finding of the appellate authority which has declined to entertain belated appeal.

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The Division Bench however placing reliance on the judgment rendered by Division Bench of this court in unreported judgment in the case of Simplex Infrastructures (supra) has set aside the order of the

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learned single Judge and the matter is remitted to consider the same afresh bearing in mind the principles laid down by Division Bench in the case of Simplex

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Infrastructures (supra) .

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The petitioner assailing the order of respondent No.2 passed under Section 73(9), 50(1) and 50(3) of the CGST and SGST Act, 2017 preferred an appeal under Section 107 before respondent No.2. The appeal is filed on 25.05.2023. There is no dispute that there is delay of 59 days. The Apex Court in the case of National Spot Exchange Limited (supra) held that appellate Tribunal lacks jurisdiction if appeal is filed after expiry of prescribed period. Section 107 of the KGST Act, 2017 clearly prescribes that appeal needs to be filed within 60 days and in terms of the proviso further 30 days time is granted to the appellate authority to entertain an appeal. Proviso to sub-section (1) of Section 35 further contemplates that appellate authority has no power to entertain an appeal presented beyond the period of additional 30 days.

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7. Under the KGST Act, the appeal under Section

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107 has to be preferred within 60 days. After expiry of 60

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days, the appellate authority has discretion for an additional period of 30 days. In the event sufficient reasons are assigned by the aggrieved party, it is well within the jurisdiction of the appellate authority to condone the delay. In the present case on hand, there is no dispute that appeal is filed after expiry of 60+30 days. The statutory provision governing the right of an appeal under Section 107 clearly leads to an inference that Tribunal lacks jurisdiction to condone the delay after 60+30 days. The appellate authority was justified in refusing to condone the delay.

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8. The Apex Court in the case of National Spot

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Exchange Limited (supra) at para 14 held as under:

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14. It is true that in a given case there may arise a situation where the applicant/appellant may not be in a position to file the appeal even within a statutory period of limitation prescribed under the Act and even within the extended maximum period of appeal which could be condoned owing to genuineness viz. illness, accident, etc However, under the statute. Parliament has not carved out any exception of such a situation. Therefore, in a given case. it may cause hardship. however, unless Parliament has carved out any exception by a provision of law, the period of limitation has to be given effect to. Such powers are

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only with Parliament and the legislature. The courts have no jurisdiction and/or authority to carve out any exception. If the courts carve out an exception, it would amount to legislate which would in turn might be inserting the provision to the statute, which is not permissible.

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In the light of the significant details culled out supra, the question that requires consideration is, as to whether this court is bound to follow the principles laid down by Division Bench in an unreported judgment in the case of Simplex Infrastructures (supra) . If the State is placing reliance on the judgment of the Apex Court then this court cannot rely on an unreported judgment rendered by Division Bench. I have also given my anxious consideration to the reasons assigned by the Division Bench while issuing directions to the appellate authority to condone the delay. That was a case arising out of a Central Excise Act and at para 18, the Division Bench has clearly held that in peculiar facts and circumstances of the case, to meet the ends of justice the appellant therein was permitted to file an appeal even though the appeal period has expired. Therefore, with great respect, I am of the view that no ratio is laid down in the judgment rendered

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by Division Bench of this court in the case of Simplex Infrastructures (supra) .

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In the hierarchy of courts, the law declared by the Apex Court under Article 141 is binding on all the courts within the territory of India. The Constitutional courts while exercising discretion under Article 226 do not have liberty under this rule of discipline, to take a different view or to rely upon supposedly conflicting decisions, where Apex Court has laid down clear law on the subject. The High Courts are not to contradict the law declared by the Apex Court.

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If under Section 107, an appeal has to be preferred within a period of 60 days with additional period of 30 days, it was well within the jurisdiction of respondent No.2-appellate authority to dismiss the appeal only on the count of delay. The judgment rendered by Division Bench of this court in the case of Simplex Infrastructures (supra) does not come to the aid of the petitioner herein, as the appellate authority lacks jurisdiction to condone the

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delay. The period prescribed under Section 107 cannot be

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condoned under Article 226 of the Constitution of India.

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