Time limit for filing GST appeal under Section 107(4) - Calcutta High Court holds the limit is not strictly mandatory and appellate authority may condone delay in appropriate cases

Executive summary

The Division Bench of the Calcutta High Court recently allowed an intra-court appeal and set aside an Appellate Authority order which had refused to entertain a delayed statutory appeal under Section 107(1) read with Section 107(4) of the Central Goods and Services Tax Act, 2017 (“CGST Act”). The High Court held that the time-limit in Section 107(4) is not strictly mandatory; in appropriate cases the Appellate Authority has power to condone delay if a proper explanation (sufficient cause) is furnished - and remanded the matter for fresh consideration after giving both sides an opportunity to place materials on record. The Court distinguished earlier Supreme Court decisions under the Central Excise Act and relied on co-ordinate High Court decisions that treated the Section 107 timeline as directory. (Case summary: Time limit for filing GST Appeal in Section 107(4) is not strictly mandatory: High Court.)

Why this is important

• Section 107(4) prescribes the time-limit for preferring appeals under Section 107. Tax authorities and tribunals have sometimes refused to entertain appeals filed beyond that period.
• If Section 107(4) is treated as mandatory, a taxpayer who misses the deadline loses his remedy unless the Court permits a writ or other exceptional relief. If it is directory, the Appellate Authority itself can condone delay in proper cases, bringing fairness/equity into play.
• The Calcutta High Court’s view gives litigants a route to seek condonation before the designated Appellate Authority rather than being forced into constitutional writs as the only remedy.

Short background of the reported judgment (facts & procedural history)

• Appellant (M/s Ashok Ghosh) received a pre-show-cause notice under Section 73(5) of the CGST Act and later an adjudication order under Section 74 (order dated 19.05.2022) by the Assistant Commissioner.
• The appellant filed an appeal under Section 107(1) with a prayer for condonation of delay. The Senior Joint Commissioner (Appellate Authority) rejected the appeal on 30.04.2024 on the ground that it was filed beyond the maximum period prescribed under Section 107(4).
• A Single Judge dismissed the related writ petition (19.08.2024), relying on Supreme Court authorities under the Central Excise Act (e.g., Singh Enterprises and Hongo India), holding there was no scope for condonation beyond statutory limits.
• On intra-court appeal the Division Bench (per Biswajit Basu, J.) set aside the Appellate Authority’s order and directed the Appellate Authority to re-consider the condonation prayer in the light of co-ordinate High Court decisions which treat Section 107(4) timelines as directory, giving both sides opportunity to place materials on record. (Full reasoning and directions are set out in the judgment extract supplied.)

Relevant statutory & legal framework (concise guide

1. CGST Act - Procedural context

• Section 73(5) - relates to issuance of show-cause notices and recovery where tax is not paid or short-paid due to reasons other than fraud/intentional evasion (provides for adjudication procedure).
• Section 74 - deals with adjudication where there is fraud, suppression or mis-statement. (Both sections are commonly invoked in demand orders and form the base for appeals.)
• Section 107 - provides the statutory right of appeal to the Appellate Authority from certain adjudication orders under the CGST Act. Section 107(1) enables an aggrieved person to prefer an appeal to the Appellate Authority. Section 107(4) prescribes the time-limit for filing such appeals (and the extent of permissible delay).

Practical note: The statutory appeal to the Appellate Authority (Section 107) is the normal route of redress against Section 73/74 orders; the time limits and mechanism for condonation therefore determine whether a taxpayer can pursue that remedy or must resort to other courts.

2. Limitation & condonation principle

• Limitation Act, 1963 (Section 5) - provides that an appeal or application may be admitted after the prescribed period if the court or authority is satisfied that the appellant had “sufficient cause” for not preferring the appeal / making the application within the period prescribed. This is the general equitable provision used to condone delays in civil and statutory proceedings.
  • In practice courts/authorities examine whether the delay is explained satisfactorily, whether prejudice is caused to the opposite party, the conduct of the parties, and the merits of the underlying appeal.

Practical note: Where a statutory provision is directory, courts frequently permit application of Section 5 Limitation Act and admit appeals/applications filed beyond the statutory period if sufficient cause exists.

3. Precedents

• Supreme Court decisions under the Central Excise legislation (eg., Singh Enterprises v. Commissioner of Central Excise (2008) 3 SCC 70; Commissioner of Customs & Central Excise v. Hongo India Pvt. Ltd. (2009) 5 SCC 791) have held rigidly that limitation periods under certain fiscal Acts are mandatory, leaving no scope for condonation beyond the statutory limits in some contexts. Those decisions were applied by the Single Judge in the first instance.
• Co-ordinate High Court decisions (notably the Division Bench in S.K. Chakraborty & Sons and a later decision in Ram Kumar Sinhal) have treated Section 107(4) in the GST context as directory, and held that the Appellate Authority may condone delay if sufficient cause is shown. The Division Bench in the present case accepted the latter line for the CGST Act and found the Central Excise authorities’ decisions inapplicable to the GST scheme. The Court also noted that a stay in a Supreme Court matter which relates to one High Court judgment does not destroy its precedential value for co-ordinate benches. (The judgment records these authorities and the reasoning.)

Court’s reasoning in the reported decision - key points

1. Different statutory scheme: The Court observed that Supreme Court decisions cited (Singh Enterprises / Hongo India) were rendered under the Central Excise Act (a different statutory scheme) and are not automatically conclusive on construction of the CGST Act. (See court’s analysis.)
2. Value of co-ordinate High Court precedents: The Court relied on Division Bench decisions of the Calcutta High Court (S.K. Chakraborty and Ram Kumar Sinhal) which treated Section 107(4) as directory and applied the Limitation Act principles. The Court held that an order staying the operation of a High Court judgment in proceedings before the Supreme Court does not obliterate the judgment’s precedential value for co-ordinate benches. (Citing Pijush Kanti Chowdhury as authority on effect of stay.)
3. Appellate Authority’s discretion: The Court held that the Appellate Authority has the power to condone delay in appropriate cases where a proper explanation is offered - i.e., Section 107(4) is not an absolute bar in every case.
4. Remand for fresh consideration: For these reasons, the Division Bench set aside the Appellate Authority’s order and directed it to re-consider the condonation request after giving both sides opportunity to place materials on record. The appeal and connected applications were disposed of without costs. (See judgment extract for operative directions.)

Legal consequences and practical implications

For taxpayers / practitioners

• First approach the Appellate Authority: Where an appeal under Section 107 is filed after the statutory period, taxpayers should first present a reasoned condonation application to the Appellate Authority with documentary evidence of “sufficient cause” (medical records, communication delays, postal receipts, professional/firm change, natural calamity, lack of notice, legal advice delay etc.). The Calcutta High Court’s view supports this approach.
• Documentary proof is crucial: Merely asserting delay is not enough - offer contemporaneous evidence and an explanation that is cogent and complete. Consider explaining steps taken to file the appeal earlier and any obstacles encountered.
• Address prejudice & merits: If possible, show the appeal has arguable merits and that the delay would not cause undue prejudice to the revenue - courts/authorities often balance prejudice and merits.
• If Appellate Authority refuses: A refusal to condone may still be open to challenge by writ, but the Calcutta High Court’s remand practice shows the importance of giving the authority a full opportunity to decide.

For Appellate Authorities

• Exercise discretion judicially: The Appellate Authority must examine condonation requests on merits, record reasons, consider evidence, examine prejudice and merits, and not adopt a mere mechanical approach.
• Consider Limitation Act principles: If Section 107(4) is treated as directory, the Authority can apply the principle of sufficient cause and admit appeals if fit. The Court’s direction to re-consider demonstrates that a blanket refusal is impermissible.

Practical checklist for a condonation application under Section 107

1. Covering letter / application stating: date of original order, date of filing appeal, period of delay, grounds for delay and prayer for condonation.
2. Chronology / timeline - a short chart showing key dates (order date, communications, filing attempts, events causing delay).
3. Evidence of cause of delay (attach):
   • Medical certificates / hospital records (if illness).
   • Proof of change of counsel / firm (e-mail/vakalatnama).
   • Postal / courier receipts or tracking info (if delay due to postal delivery).
   • Proof of natural calamity / transport strike / other force majeure.
   • Official correspondence / replies showing late issuance/communication of order.
4. Proof of filing attempts (if any): draft appeal, payment receipts, system screenshots, bank challans.
5. Copy of the adjudication order (Section 73/74 order), grounds of appeal (short synopsis).
6. Affidavit verifying the facts and the application.
7. Authority to act & contact details (vakalatnama or power of attorney).
8. Relief sought - condonation of delay and admission of appeal; interim directions (if any).
9. Index of documents attached.

Model / sample concise condonation clause (to be expanded into full application)

Prayer: That this Hon’ble Appellate Authority may be pleased to condone the delay of ___ days in filing the appeal against Order No. ___ dated ___ passed under Section 74/73 of the CGST Act, 2017 by allowing the appeal to be admitted and heard on merits in the interest of justice and equity, for the reasons and on the basis of documents filed herewith. An affidavit in support is filed.

Suggested reasoning points for the condonation affidavit (examples of “sufficient cause”)

• Serious illness of the principal partner / authorised person (attach medical records).
• Delay in receipt of the adjudication order (attach postal receipt / office communication).
• Delay due to change of counsel or absence of counsel beyond control of appellant (attach communications).
• Genuine confusion over computation of limitation due to multiple dates of communication - explain and attach correspondences.
• Natural calamity, power outage, or lockdown impeding timely filing - attach government notifications / evidence.
• Misleading or incorrect advice by a competent representative disclosed by contemporaneous email/receipt.
• Any other exceptional circumstance beyond appellant’s control which prevented filing within the period.

Always remember to connect the reason with contemporaneous evidence - retrospective explanations without documents attract skepticism.

Points of caution & tactical tips

• Do not ignore the statutory time-limit: Even if there is hope of condonation, always aim to file as early as possible and explain delay, rather than waiting for long.
• Record reasons with dates: The Appellate Authority must be given a clear, contemporaneous trail.
• Prejudice to revenue: Explain why no prejudice will be caused to the revenue (for example, no fresh investigation or destruction of evidence).
• Merits matter: If the appeal is frivolous, courts/authorities are less likely to condone long delay. A succinct note on the merits helps.
• If adverse, consider writ: If the Appellate Authority mechanically refuses condonation without hearing/recording reasons, judicial review may still be available; but Courts generally prefer that the statutory authority first exercise its discretion.

Practical illustration from the reported judgment

• In the reported case the Appellate Authority refused to entertain the condonation request on a mechanical ground (i.e., appeal filed beyond the maximum period) without sufficiently applying the Limitation/“sufficient cause” analysis. The Division Bench set aside that order and remitted the matter for the Appellate Authority to consider the condonation request afresh after hearing both sides and allowing them to place materials on record. This illustrates the High Court’s insistence on a reasoned, evidence-based approach.

Sample list of authorities & references (for further reading)

• Central Goods and Services Tax Act, 2017 - provisions on show-cause notice, adjudication and appeals (Sections 73, 74, 107). (Read the Act text on the Government/CBIC website or official gazette for authoritative wording.)
• Limitation Act, 1963 - Section 5 - extension of prescribed period where “sufficient cause” is shown. (See official text of the Limitation Act.)
• Supreme Court Cases: Singh Enterprises v. Commissioner of Central Excise, (2008) 3 SCC 70; Commissioner of Customs & Central Excise v. Hongo India Pvt Ltd., (2009) 5 SCC 791. (Both cited by Single Judge in the initial order.)
• Calcutta High Court Division Bench decisions: S.K. Chakraborty & Sons v. Union of India (M.A.T. 81 of 2022) (decided 01.12.2023 - held Section 107(4) directory); Ram Kumar Sinhal v. State of West Bengal [2025] 177 Taxmann.com 48 (Calcutta) (similar view). (These High Court decisions were relied on by the Division Bench in the present case.)
• Reported write-up of the present decision: Time limit for filing GST Appeal in Section 107(4) is not strictly mandatory: High Court (TaxReply / Tax Library).

Concluding observations

• The Calcutta High Court’s decision restores a measure of equitable discretion to Appellate Authorities under the CGST Act. It emphasizes that statutory timelines must be read in context and that in the GST framework the Appellate Authority should apply a reasoned “sufficient cause” analysis rather than mechanically rejecting delayed appeals.
• For practitioners: prepare a well-documented condonation petition when appeals are late; put forward contemporaneous records and a concise merits note. For authorities: exercise the discretion judicially and explain the reasoning on record.
• Finally, each jurisdictional High Court may have its own approach; while the Calcutta High Court’s view is persuasive for litigants in its territory, practitioners should watch for consistent rulings from other High Courts or further guidance from the Supreme Court on whether the CGST timelines are to be treated as strictly mandatory or directory.

Want a ready condonation application & affidavit?

If you’d like, I can draft a fully-formatted condonation application and supporting affidavit (with headings, factual background, legal grounds, annexure list and a short merits note) tailored to the facts of a particular case (provide dates, length of delay, reasons and available evidence). I can also convert it into a printable Word/PDF format for filing.

A Sample ready-to-use Condonation Application and a supporting Affidavit tailored

1. CONDONATION APPLICATION (to be filed with the Appellate Authority)

BEFORE THE APPELLATE AUTHORITY
[Name of Appellate Authority / Office]
[Address of Appellate Authority]

In the matter of:
Appeal under Section 107(1) of the Central Goods and Services Tax Act, 2017

Applicant / Appellant:
Name: Mr. .....................
Address: ____________________________________________
GSTIN / PAN (if applicable): ___________________________
Contact No.: _______________________________________
Email: ____________________________________________

Respondent:
The Commissioner / Senior Joint Commissioner / Competent Authority
[Name & Address]

Subject: Application for condonation of delay in filing appeal under Section 107(1) of the Central Goods and Services Tax Act, 2017 - Appeal against Order No. [______] dated [______] passed by [Name & designation of Adjudicating Authority].

Most respectfully submitted:

1. That the appellant was aggrieved by the Order No. _______ dated _______ passed by [Name & designation of Adjudicating Authority] under Section 73 / 74 of the Central Goods and Services Tax Act, 2017. A true copy of the impugned order is annexed and marked Annexure-A.
2. That the appellant preferred the present appeal before this Hon’ble Appellate Authority on [date of filing]. The statutory period for filing the appeal under Section 107(4) expired on [last date for filing] and therefore the appeal was filed after the prescribed period. The delay in filing amounts to ___ days.
3. That the delay in filing the appeal was neither intentional nor negligent but was occasioned by a bona fide and unavoidable circumstance. The appellant, Mr. ......, suffered from kidney stone and on the advice of his treating doctor was put on strict bed rest for a period of four (4) months from [start date] to [end date]. During the said period Mr. ...... was medically unfit to attend to office matters, to consult counsel and to instruct for the preparation and filing of the appeal. A medical certificate, hospital records and discharge summary are produced herewith and marked Annexure-B.
4. That immediately upon recovery and/or cessation of the cause for delay, steps were taken to instruct counsel and prepare and file the appeal forthwith. A copy of the appeal draft / proof of filing and payment challan are annexed and marked Annexure-C.
5. That the delay was bona fide, unavoidable and beyond the control of the appellant, and the appellant has sufficient cause for not preferring the appeal within the prescribed period.
6. That the appeal involves substantial questions of law and fact and the appellant has a prima facie case deserving adjudication on merits. In the interest of justice and equity, the appellant humbly prays that the delay in filing be condoned and the appeal be admitted.
7. That reliance is placed on Section 5 of the Limitation Act, 1963 which empowers courts/authorities to admit appeals/applications after the prescribed period if “sufficient cause” is shown.

PRAYER

In view of the above, it is most respectfully prayed that this Hon’ble Appellate Authority may be pleased to:

(a) Condone the delay of ___ days in filing the appeal under Section 107(1) of the CGST Act, 2017;
(b) Admit the appeal and place the matter on the Board/Calendar for hearing; and
(c) Pass such other orders as this Hon’ble Authority deems fit and proper.

Place: ____________
Date: _____________

For and on behalf of the Appellant,
(Signature) ________________________
Name: Mr. .......... / Authorized Signatory
Designation (if any): ___________________

Enclosures / Annexures:

• Annexure-A: Copy of impugned Order No. _______ dated _______.
• Annexure-B: Medical certificate / hospital records / discharge summary (Dr.’s advice for bed rest for four months) relating to Mr. ........
• Annexure-C: Proof of filing of appeal / payment challan / draft appeal.
• Annexure-D: Vakalatnama / Power of Attorney (if applicable).
• Annexure-E: Any other supporting documents (if applicable).

2. AFFIDAVIT (in support of the Condonation Application)

AFFIDAVIT

I, Mr. .........., son of [father’s name], aged [age], resident of [full address], do hereby solemnly affirm and state as follows:

1. That I am the appellant / authorized signatory in the above-captioned matter and am well acquainted with the facts and circumstances of the case. I am competent to swear this affidavit and the statements made herein are true to my knowledge and belief.
2. That I was served with the impugned order No. _______ dated _______ passed by [Name & designation of Adjudicating Authority] under Section 73 / 74 of the CGST Act, 2017. A copy of the said order is annexed to the Condonation Application as Annexure-A.
3. That I intended to prefer an appeal against the said impugned order within the period prescribed under Section 107(4) of the CGST Act, 2017. However, I was struck by a severe health problem (kidney stone) and on the advice of my treating doctor I was put on strict bed rest for a continuous period of four (4) months from [start date] to [end date]. Copies of the medical certificate, hospital records and the treating doctor’s advice are produced herewith and marked as Annexure-B.
4. That owing to the aforesaid medical condition and the doctor’s advice, I was not in a physical or mental condition to attend to office matters, consult counsel, sign documents or undertake travels necessary to pursue or file the appeal within the prescribed time. The delay in filing the appeal was therefore bona fide and unavoidable.
5. That immediately upon recovery / cessation of the cause for delay, I instructed my counsel and took steps to prepare and file the appeal; the appeal was filed on [date of filing]. The delay in filing the appeal is ___ days. Proof of filing / payment challan is annexed hereto and marked Annexure-C.
6. That the delay was not deliberate or intentional and that I took prompt steps to file the appeal upon becoming fit to do so.
7. That in the interests of justice and equity, I pray that the Hon’ble Appellate Authority may kindly condone the delay and allow the appeal to be admitted and heard on merits.
8. That I state that the contents of paragraphs 1 to 7 of this affidavit are true and correct to my knowledge and belief and nothing material has been concealed therefrom.

Verified at [Place] on this [date].

(Signature of Deponent)
Mr. .............
Address: ____________________________

Before me:
(Signature & Seal of Notary / Oath Commissioner / Magistrate)
Name & Designation: ___________________
Date: _______________________________

3. SAMPLE MEDICAL CERTIFICATE (for Doctor / Hospital to issue)

(This is a sample text the treating doctor may use on hospital letterhead)

[Hospital Letterhead]

Medical Certificate

This is to certify that Mr. ......., aged [age], resident of [address], was examined and treated by me/us at [Hospital/Clinic name]. He was diagnosed with ureteric/kidney stone (urolithiasis). Considering his clinical condition and for effective treatment and recovery, he was advised strict bed rest and restricted physical activity for a period of four (4) months from [start date] to [end date].

During the aforesaid period he was medically unfit to attend to official work or to travel for legal consultations. Medical records, investigation reports and discharge summary are attached.

Doctor’s Name: ____________________
Qualifications: ____________________
Registration No.: __________________
Signature and Seal: _________________
Date: _____________________________

(Attach hospital discharge summary, operation notes if any, investigation reports, and other relevant documents.)

4. NOTES & PRACTICAL POINTS FOR FILING

1. Compute delay correctly - count days from the day after the last day of the statutory period (expiry of Section 107(4) time) to date of filing the appeal. Insert that number of days in the application and affidavit.
2. Attach all medical records to show contemporaneous evidence: hospital records, doctor’s certificate (as above), test reports, prescription, discharge summary, medication records. Self-attest copies.
3. Attach proof of filing: receipt, payment challan or online filing acknowledgement for the appeal.
4. Attach proof of service: how the impugned order was received (postal receipt, courier, email).
5. Vakalatnama: if a lawyer is filing, attach the vakalatnama.
6. Signatures and verification: the affidavit must be signed by the deponent and notarized / attested as per local practice before the competent officer. The condonation application should be signed by the appellant or his authorized signatory/counsel.
7. Present the application: file the condonation application along with the appeal before the Appellate Authority under Section 107 and request that it be considered at the time of admitting the appeal.

For More Information & Support Please Contact :

Dr. Muhammed Mustafa C T.
Senior Tax Consultant, BRQ Associates
???? +91 96331 81898
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