Facts of the Case

1.    Demand Order dated 29.05.2023 was issued electronically on 30.05.2023 by way of uploading the same along with summary of order issued in Form GST DRC-07 dated 30.05.2023.

2.    Appellant filed an appeal against said demand order before Joint Commissioner of State Tax, Gurugram (Appeals) (“Appellate Authority”, in short) on 30.09.2023 along with an application for condonation of delay.

3.    Appellant made the pre-deposit for 10% of the amount of tax in dispute on 19.01.2024.

4.    Appellant intimated the fact of pre-deposit being made to the appellate authority by way of an application dated 07.02.2024 (submitted on 12.02.2024).

5.    Appellate Authority dismissed the appeal by way of order dated 23.02.2024 for the reasons:

1. The appellant has failed to deposit 10% of disputed tax along with filing of online appeal.
2. Apparently present appeal is late by 32 days. As per section 107(4), the appellate authority can condone the delay of only one month i.e., 30 or 31 days and not more than that.

Legal Analysis

6.    Section 107(1) uses the expression “three months from the date on which the said decision or order is communicated”. As per section 9 of General Clauses Act, 1897, whenever the expression “from” is used, said day is to be excluded from the period of limitation. Therefore, period of limitation is to start from 31.05.2023 in a case where demand order is communicated on 30.05.2023.

7.    As per Halsbury Law of England, Vol. 37, 3^rd Edition, Para 143 at pages 83-84, when the period prescribed is a calendar month running from arbitrary date, the period expires with the day in the succeeding month immediately preceding the day corresponding to the date upon which period starts.

8.    Therefore, total period of 4 months (3 months + 1 months) which is to start from 30.05.2023 [i.e., on 31.05.2023] shall end on 30.09.2023 and hence, the appeal is filed within total period of limitation of 4 months.

9.    In terms of settled jurisprudence, pre-deposit can be made upto the event prior to taking up appeal for consideration by the appellate authority for first time, be it on merits or for condonation of delay, as the case may be. Since in the present case, pre-deposit was made on 19.01.2024, intimation to appellate authority was made on 12.02.2024 and order dismissing the appeal was issue later on 23.02.2024, there was no defect in making pre-deposit.

Judgment of the Court

10. Hon’ble court find force in the contentions of petitioner, and

1. Condoned the delay in filing of appeal
2. Held that appeal is filed within the total period of limitation of 4 (3+1) months
3. Held that pre-deposit is validly made.