Facts of the Case

M/s Mohammad Sakil, a sole proprietorship registered under the Bihar Goods and Services Tax Act, 2017 ("BGST Act"), had its first appeal against an assessment order dismissed by the Appellate Authority solely on the ground of delay. The appeal had been filed beyond even the extended one-month condonable period under Section 107(4) of the BGST Act, and settled law holds that neither the Appellate Authority nor a writ court under Article 226 can condone delay beyond the statutory limit. While the matter was pending before the Patna High Court, the Central Board of Indirect Taxes and Customs issued Notification No. 53/2023-Central Tax dated 02.11.2023, granting a one-time window to file appeals against orders passed under Sections 73 and 74 of the BGST Act on or before 31.03.2023, subject to specified pre-deposit conditions.

Issues Involved

  1. Whether a GST appeal rejected for delay beyond the statutory condonable period under Section 107(4) BGST Act could be revived.
  2. Whether the Amnesty Notification No. 53/2023-Central Tax applied to restore such appeals, and on what conditions.
  3. Whether the benefit of the Notification also extends to assessees whose earlier writ petitions against delay-based rejection had already been dismissed.

Petitioner's Arguments

  • The rejection of the appeal was purely on limitation grounds without any adjudication on merits.
  • The petitioner sought the benefit of the newly issued CBIC Amnesty Notification No. 53/2023 to have the appeal restored and heard on merits.

Respondent's Arguments

  • The Union of India and State authorities did not seriously contest the applicability of Notification No. 53/2023 to appeals rejected for delay.
  • Compliance with the pre-deposit conditions prescribed in paragraphs 2 to 6 of the Notification, including payment of admitted dues and 12.5% of the disputed tax, was necessary before any appeal could be restored.

Court Order-Findings

  • The Court noted that Notification No. 53/2023-Central Tax extends the appeal-filing window up to 31.01.2024 for orders passed under Sections 73/74 on or before 31.03.2023, effectively overriding the one-month condonable limit under Section 107(4).
  • The Court set aside the impugned order rejecting the appeal as time-barred and directed the assessee to satisfy the conditions in paragraph 3 of the Notification (payment of admitted tax and 12.5% of the disputed tax, capped at Rs. 25 crore, with at least 20% of that sum debited from the Electronic Cash Ledger) before 31.01.2024.
  • If the conditions are met, the appeal is to be taken up and decided on merits; if not, the appeal stands rejected.
  • The Court clarified that the benefit of the Notification is available even to assessees whose writ petitions against delay-based rejection had earlier been dismissed by the High Court.

Important Clarification

  • Where a statutory appeal has been rejected only for delay beyond the condonable period under Section 107(4), the Amnesty Notification (No. 53/2023-Central Tax) provides an independent route to revive the appeal without requiring the writ court to condone delay beyond statutory limits.
  • Restoration is conditional: full payment of admitted dues plus 12.5% of the disputed tax (with 20% from the cash ledger) is a precondition, not a formality.
  • The benefit applies even where an earlier writ challenging the delay-based rejection was dismissed, provided the notification's conditions are met by the prescribed cutoff.

Sections Involved

  • Section 107, BGST Act, 2017 - prescribes the limitation period (three months, extendable by one month) for filing a first appeal.
  • Sections 73 and 74, BGST Act, 2017 - govern determination of tax not paid/short paid, without and with allegation of fraud; orders under these sections were covered by the Amnesty Notification.
  • Notification No. 53/2023-Central Tax dated 02.11.2023 - CBIC's special one-time procedure permitting delayed appeals against Section 73/74 orders till 31.01.2024, subject to pre-deposit conditions.

Decision-In Favour of

Disposed of in favour of the Assessee, subject to conditions. The writ petition was allowed and the rejection order set aside, but restoration of the appeal itself remains conditional on the assessee satisfying the pre-deposit terms of Notification No. 53/2023 within the stipulated deadline.

Related Case Laws

No directly on-point case notes are currently published on this site.

Case Details

Court: High Court of Judicature at Patna
Case No.: Civil Writ Jurisdiction Case No. 14143 of 2023
Coram: Hon'ble the Chief Justice K. Vinod Chandran and Hon'ble Mr. Justice Rajiv Roy
Date of Decision: 09.11.2023

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