Jharkhand High Court
M.N. Ghosh & Sons vs Principal Commissioner on 25 April, 2025
Author: Deepak Roshan
Bench: Deepak Roshan
2025:JHHC:12316-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(T) No. 3408 of 2024
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M.N. Ghosh & Sons, a partnership firm, having its registered office at
Birsa Nagar, Gua, P.O. & P.S. Birsanagar, District-East Singhbhum,
Town - Jamshedpur, PIN 833213, through its partner, Sarad Kumar
Sahu, aged about 53 years, son of Late Aswasthama Sahu, resident
of Birsa Nagar, Gua, P.O. & P.S. Birsanagar, District-East Singhbhum,
Town - Gua PIN-833213, Jharkhand. ... ... Petitioner(s)
Versus
1. Principal Commissioner, Central Goods & Services Tax & Central
Excise, Jamshedpur, having its office at South Park, Bistupur, P.O. &
P.S. Bistupur, District-East Singhbhum, Town-Jamshedpur
(Jharkhand), PIN-831001.
2. Commissioner (Appeals), Central Goods & Services Tax & Central
Excise having its office at 2nd & 3rd Floor, Grand Emerald Building,
between Road No. 1 & 2, Ashok Nagar, P.O. Ashok Nagar & P.S.
Argora, District - Ranchi (Jharkhand), PIN-834002.
3. Joint Commissioner (Appeals), Central Goods & Services Tax &
Central Excise having its office at 2nd & 3rd Floor, Grand Emerald
Building, between Road No. 1 & 2, Ashok Nagar, P.O. Ashok Nagar &
P.S. Argora, District - Ranchi (Jharkhand), PIN -834002.
4. Superintendent, Central Goods & Services Tax & Central Excise,
Chaibasa Rural Range, Division-I, Jamshedpur, having its office at
South Park, Bistupur, P.O. & P.S. Bistupur, District -East Singhbhum,
Town - Jamshedpur (Jharkhand), PIN-831001.
... ... Respondent(s)
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE DEEPAK ROSHAN
For the Petitioner : Mr. M. S. Mittal, Sr. Advocate
For the Respondents : Mr. P. A. S. Pati, Advocate
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JUDGMENT
CAV On 03/04/2025 Pronounced On 25/04/2025 Per Deepak Roshan, J.
The instant writ application has been preferred by the petitioner
praying for the following reliefs:
“(i) Certiorari for quashing of appellate order dated 23.11.2023 (Ann-9/ Pg. 51)
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2025:JHHC:12316-DBpassed by Joint Commissioner (Appeals), CGST & CX (Respondent No. 3)
whereby appeal filed by the petitioner has been dismissed on ground of it being
time barred.
(ii) Certiorari for quashing of order dated 8.7.2022 (Ann-3/Pg. 29) passed by
Superintendent, CGST & CX, Chaibasa Rural Range, Division-I, Jamshedpur
(Respondent No. 4) by which registration of the petitioner has been cancelled
under Section 29(2)(C) of the Central Goods and Services Tax Act, 2017
(“CGST Act“), i.e., for failure to furnish returns for six months.
(iii) Mandamus directing the respondents to revoke the cancellation of the
petitioner’s registration.”
2. The brief facts of the case as it appears from the pleadings are
that the petitioner is a partnership firm which carried on the business
of civil construction work and labour supply. Upon advent of GST
regime, the Petitioner obtained registration under the CGST Act, with
its GSTIN being 20ABMFM1797K1ZX.
A notice was issued to the petitioner in Form GST REG-17/31
requiring the petitioner to show-cause as to why its registration ought
not to be cancelled for failure to file returns for a continuous period of
six months. The petitioner was directed to appear before 4th
Respondent on 03.02.2022 and informed that its registration had been
suspended with effect from 28.01.2022. Thereafter, registration of the
petitioner-Firm was cancelled by the 4th Respondent with effect from
28.02.2022.
The petitioner was left with no option but to file an appeal under
Section 107 of the CGST Act which was registered as Appeal No.
155/CGST/JSR/2023. The appeal of the Petitioner was dismissed on
the ground of time barred as prescribed under Section 107 of the
CGST Act.
3. Mr. M. S. Mittal, Ld. Sr. Counsel representing the Petitioner
submits that one Mr. Sanjay Ghosh, active partner of the petitioner-
Firm used to look after its day-to-day activities. However, due to
severe health issues he could not furnish reply to the show-cause
notice in time or appear before the 4th Respondent. He further submits
that though the order states that Petitioner has allegedly submitted a
reply on 08.02.2022, which it did not, the reason for cancellation has
been stated as “not responding in the matter.”
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He submits that Petitioner’s registration was cancelled from a
retrospective date without any reason and as per Rule 23 of the CGST
Rules, no application for revocation, where cancellation has been
done on account of non-filing of returns, can be filed unless such
returns have been filed along with interest and late fee.
He further submits that due to extreme financial crisis, the return
for February 2022 could be furnished on 19.09.2023, even though all
previous returns were filed much before. Therefore, the Petitioner was
precluded from filing the revocation application within the specified
time limit.
4. Mr. P. A. S. Pati, learned counsel for the revenue submits that
there is no error in the impugned order and this Court in catena of
judgments has held that limitation cannot be condoned by the
appellate authority beyond the period what has already been
stipulated in Section 107 of the CGST Act. As such, he submits that
the instant writ application be dismissed.
5. Having heard learned counsel for the parties and after going
through the documents available on record and the impugned order, it
is crystal clear that the impugned order for cancellation of registration
with effect from 28.02.2022 under Section 29(2)(c) of the CGST Act,
2017 was issued on 08.07.2022 and the Petitioner had filed an appeal
under Section 107 of the CGST Act, which is the appellate provision
on 29.09.2023 through online and hard copy of the same was
submitted in the office of the appellate authority on 06.10.2023; as
such, after calculating the entire period, it appears that the appeal has
been filed after one year and three months beyond the normal period
of filing of appeal as prescribed under Section 107 (1) of the CGST
Act, 2017.
6. Section 107 of the CGST Act, 2017 stipulates the procedure for
filing appeal before the appellate authority which reads as under:
“Appeals to Appellate Authority:
(1) Any person aggrieved by any decision or order passed under this Act or the State
Goods and Services Tax Act or the Union Territory Goods and Services Tax Act by
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an adjudicating authority may Appeal to such Appellate Authority as may be
prescribed within three months from the date on which the said decision or order is
communicated to such person.
(2) ……………………..
(3) ……………………..
(4) The Appellate Authority may, if he is satisfied that the Appellant was prevented by
sufficient cause from presenting the Appeal within the aforesaid period of three
months or six months, as the case may be, allow it to be presented within a further
period of one month.”
……………………………………..”
7. On plain reading of Section 107 makes the position crystal clear
that the appellate authority has no power to allow an appeal to be
presented beyond the period of one month for filing of appeal. The
language used makes the position clear that the legislature intended
the appellate authority to entertain the appeal by condoning delay only
up to one month after the expiry of three months which is the normal
period for preferring appeal.
8. In “Singh Enterprises v. Commissioner of Central Excise,
Jamshedpur” 1, the Hon’ble Apex Court considered a case, wherein,
the Commissioner dismissed the appeal on the ground that it was time
barred and beyond the period of 30 days from the expiry of period of
60 days, prescribed for filling the statutory appeal. The High Court
dismissed the writ petition. Arguments were advanced before the
Hon’ble Supreme Court that even though the Commissioner has no
power to condone the delay, in exercise of the powers, under Article
226 of the Constitution of India, yet the High Court, can condone the
delay, and such power is untrammeled by any statutory provision.
Rejecting the above contention, at Paragraph 8, the Hon’ble Apex
Court held as follows:
“8. The Commissioner of Central Excise (Appeals) as also the
Tribunal being creatures of statute are not vested with jurisdiction to condone
the delay beyond the permissible period provided under the statute. The
period up to which the prayer for condonation can be accepted is statutorily
provided. It was submitted that the logic of Section 5 of the Limitation Act,
1963 (in short “the Limitation Act“) can be availed for condonation of delay.
The first proviso to Section 35 makes the position clear that the appeal has
to be preferred within three months from the date of communication to him of
the decision or order. However, if the Commissioner is satisfied that the
appellant was prevented by sufficient cause from presenting the appeal1
(2008) 3 SCC 70
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2025:JHHC:12316-DBwithin the aforesaid period of 60 days, he can allow it to be presented within
a further period of 30 days. In other words, this clearly shows that the appeal
has to be filed within 60 days but in terms of the proviso further 30 days’ time
can be granted by the appellate authority to entertain the appeal. The proviso
to sub-section (1) of Section 35 makes the position crystal clear that the
appellate authority has no power to allow the appeal to be presented beyond
the period of 30 days. The language used makes the position clear that the
legislature intended the appellate authority to entertain the appeal by
condoning delay only up to 30 days after the expiry of 60 days which is the
normal period for preferring appeal. Therefore, there is complete exclusion of
Section 5 of the Limitation Act. The Commissioner and the High Court were
therefore justified in holding that there was no power to condone the delay
after the expiry of 30 days’ period.”
9. We find that the order of cancellation of registration of the
Petitioner was passed on 08.07.2022, accordingly three months
period for filling appeal in this case is up to 07.10.2022 without
application for condonation of delay. But appeal against the said order
was filed on 29.09.2023 through online, after the normal period of
three months within which any appeal under Section 107 of the Act is
required to be filed.
Even after considering the condonation request of the appellant,
for further granting extension of one month as per Section 107 (4) of
the CGST Act, 2017, the time limit for filling of the appeal in this way is
up to 07.11.2022 only. But the appeal against the order of cancellation
of registration of the petitioner was filed on 29.09.2023 through online.
10. Thus, we are having no hesitation in holding that the Petitioner-
Firm is not entitled for any relief on the ground of delay and latches
coupled with the fact of being lethargic in approach; inasmuch as, on
the one hand, the petitioner did not file return regularly and thus has
not complied with GST REG-17/31 issued to him in any manner; and
on the other hand, the appellant filed appeal after delay of more than
one year and three months which is admittedly beyond the period of
limitation as per the Act.
11. Having regard to the aforesaid facts and circumstances, neither
there is any perversity in the order of cancellation of GST registration;
nor there is any necessity for interference with the appellate order,
inasmuch as, the same has been filed beyond the statutory period of
limitation. Though Mr. Mittal, Ld. Sr. Counsel had tried to draw
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attention of this Court towards the merits of the case but we are not
going on merits of the case for the sole reason that the appeal filed
before the appellate authority was beyond the statutory period.
12. Accordingly, the instant writ application is dismissed being
devoid of any merit. However, there shall be no order to cost. Pending
I.As, if any, also stand disposed of.
(M. S. Ramachandra Rao, C.J.)
(Deepak Roshan, J.)
Amit
A.F.R
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