Facts of the Case

M/s Mohammad Sakil, a sole proprietorship firm registered in Purnea, Bihar, had filed an appeal under Section 107 of the Bihar Goods and Services Tax Act, 2017 (BGST Act) against an order passed under Sections 73/74 of the Act. Section 107 permits three months for filing an appeal, extendable by a further one month on satisfactory explanation for delay. The petitioner's appeal was filed beyond even this extended one-month period and was accordingly rejected by the first Appellate Authority (Annexure-6). The petitioner approached the Patna High Court under Article 226, seeking restoration of the appeal in light of the subsequently issued Notification No. 53 of 2023-Central Tax dated 02.11.2023, which created a special one-time procedure allowing delayed appeals against Section 73/74 orders passed on or before 31.03.2023. The matter was heard by a Division Bench comprising the Chief Justice and Justice Rajiv Roy, with counsel for the Union of India and the Bihar State Tax authorities appearing.

Issues Involved

  1. Whether the Court, exercising writ jurisdiction, could condone delay in filing an appeal beyond the statutory period under Section 107(4) of the BGST Act.
  2. Whether the benefit of Notification No. 53 of 2023-Central Tax could be extended to the petitioner's already-rejected appeal.
  3. What conditions must be satisfied for the appeal to be restored and heard on merits.

Petitioner's Arguments

  • The appeal, though delayed, ought to be restored in view of the special dispensation created by Notification No. 53 of 2023-Central Tax, which permits filing of appeals against Section 73/74 orders on or before 31.01.2024.
  • The petitioner was willing to comply with the payment conditions prescribed under the Notification to have the appeal considered on merits.

Respondent's Arguments

  • The Union of India and State Tax authorities did not seriously contest the applicability of the Notification, given its clear terms permitting restoration of delayed appeals against Section 73/74 orders passed on or before 31.03.2023.

Court Order/Findings

  • Ordinarily, neither the Appellate Authority nor the High Court under Article 226 can condone delay beyond the period statutorily prescribed under Section 107 of the BGST Act.
  • However, Notification No. 53 of 2023-Central Tax carves out a special procedure that effectively extends the limitation for delayed appeals against Section 73/74 orders, subject to payment in full of the admitted tax, interest, fine, fee and penalty and 12.5% of the remaining disputed tax amount (at least 20% of that 12.5% debited from the Electronic Cash Ledger), capped at Rs.25 crore.
  • The Court set aside the order rejecting the appeal and directed the petitioner to satisfy the Notification's payment conditions before 31.01.2024, upon which the appeal would be taken up and considered on merits; failing compliance, the appeal would stand rejected.
  • The Court further clarified that assessees whose writ petitions against delay-based rejections had earlier been dismissed could still independently avail the Notification's benefit, and directed the Commissioner, State Taxes, Bihar, to issue instructions to officers accordingly.

Important Clarification

Where a beneficial notification such as Notification No. 53 of 2023-Central Tax is issued after an appeal has been rejected for delay, an assessee can invoke it to have the appeal restored, provided the prescribed pre-deposit conditions are met within the notified cut-off date — even if the assessee's own writ challenge to the delay-based rejection would otherwise fail on limitation grounds.

Sections Involved

  • Section 107, BGST Act, 2017 — prescribes the limitation period (three months plus a further condonable month) for filing appeals against adjudication orders.
  • Sections 73 and 74, BGST Act, 2017 — govern determination of tax not paid/short paid, in cases without and with fraud/suppression respectively.
  • Notification No. 53 of 2023-Central Tax dated 02.11.2023 — special one-time procedure extending the appeal filing window for orders passed on or before 31.03.2023, subject to a prescribed pre-deposit.

Decision – In Favour of

The writ petition was allowed, and the decision favours the Assessee: the order rejecting the delayed appeal was set aside and the appeal restored for consideration on merits, subject to the petitioner satisfying the payment conditions of Notification No. 53 of 2023-Central Tax within the stipulated timeline; failure to do so would result in the appeal standing rejected.

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.13769 of 2023
  • CNR: Not available
  • Coram: Hon'ble the Chief Justice (K. Vinod Chandran, CJ) and Hon'ble Mr. Justice Rajiv Roy
  • Decision Date: 9 November 2023
  • Disposal Nature: Allowed

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