N.N Steel Trading Co. Vs Joint Commissioner (Appeals) (Kerala High Court)
Kerala High Court addressed a petition by N.N Steel Trading Co., challenging the rejection of its GST appeal by the First Appellate Authority. The appeal was dismissed on the grounds of being time-barred under Section 107 of the CGST/SGST Acts, 2017. The petitioner argued that the appeal, filed on November 6, 2023, was within the condonable period when calculated using British calendar months, rather than a fixed 30-day period per month, as interpreted by the Appellate Authority. The petitioner relied on the Supreme Court’s ruling in Himachal Techno Engineers, which clarified that ‘month’ in legal statutes should be calculated per the British calendar rather than a fixed 90-day period.
The court found merit in the petitioner’s argument, emphasizing that the legislative intent distinguishes between “months” and “days” in limitation statutes. It reaffirmed that an appeal period stated in “months” must align with the corresponding date in the relevant calendar month. Consequently, the court quashed the rejection order and restored the appeal for fresh adjudication, directing the Appellate Authority to consider the observations in its ruling.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
The petitioner has approached this Court being aggrieved by the fact that an appeal filed by the petitioner against Ext.P1 order has been rejected by Ext.P3 order of the First Appellate Authority on the ground that it was barred by limitation under the provisions of Section 107 of the Central Goods and Services Tax/State Goods and Services Tax Acts, 2017 (CGST/SGST Acts).
2. The learned counsel appearing for the petitioner submits that Ext.P1 order was served on the petitioner on 06-07-2023. It is submitted that under Section 107 of the CGST/SGST Acts, a period of three months is available for filing an appeal, and an appeal can be presented within a further period of one month along with an application for condonation of delay. It is submitted that the appeal which resulted in Ext.P3 order of the First Appellate Authority was presented on 06-11-2023. It is submitted that the First Appellate Authority proceeded on the basis that the term ‘month’ in Section 107 of the CGST/SGST Acts referred to a period of 30 days in which event the appeal filed on 06-11-2023 was not maintainable. The learned counsel places reliance on the judgment of the Supreme Court in State of Himachal Pradesh and Another v. Himachal Techno Engineers and Another; (2010) 12 SCC 120, to contend that if the word ‘month’ is used in any statute, the same can only be counted in British calendar months, and therefore, the appeal filed on 06-11-2023 was clearly within the condonable period mentioned in Section 107 of the CGST/SGST Acts.
3. The learned Senior Standing Counsel appearing for the respondents does not seriously dispute the legal proposition as set out in the judgment of the Supreme Court in Himachal Techno Engineers (supra).
4. Having heard the learned counsel appearing for the petitioner and the learned Senior Standing Counsel appearing for the respondents, I am of the view that the issue stands covered in favour of the petitioner by the judgment of the Supreme Court in Himachal Techno Engineers (supra), where while considering the question of whether an application under Section 34 of the Arbitration and Conciliation Act, 1996, had been filed within time, the Supreme Court held as follows:
“14. The High Court has held that “three months” mentioned in Section 34(3) of the Act refers to a period of 90 days. This is erroneous. A “month” does not refer to a period of thirty days, but refers to the actual period of a calendar month. If the month is April, June, September or November, the period of the month will be thirty days. If the month is January, March, May, July, August, October or December, the period of the month will be thirty one days. If the month is February, the period will be twenty-nine days or twenty eight days depending upon whether it is a leap year or not.
15. Sub-section (3) of Section 34 of the Act and the proviso thereto significantly, do not express the periods of time mentioned therein in the same units. Sub-section (3) uses the words “three months” while prescribing the period of limitation and the proviso uses the words “thirty days” while referring to the outside limit of condonable delay. The legislature had the choice of describing the periods of time in the same units, that is, to describe the periods as “three months” and “one month” respectively or by describing the periods as “ninety days” and “thirty days” respectively. It did not do so. Therefore, the legislature did not intend that the period of three months used in sub-section (3) to be equated to 90 days, nor intended that the period of thirty days to be taken as one month.
16. Section 3(35) of the General Clauses Act, 1897, defines a “month” as meaning a month reckoned according to the British calendar.
17. In Dodds v. Walker – (1981) 2 All ER 609 (HL), the House of Lords held that in calculating the period of a month or a specified number of months that had elapsed after the occurrence of a specified event, such as the giving of a notice, the general rule is that the period ends on the corresponding date in the appropriate subsequent month irrespective of whether some months are longer than To the same effect is the decision of this Court in Bibi Salma Khatoon v. Sate of Bihar; (2001) 7 SCC 197.
18. Therefore when the period prescribed is three months (as contrasted from 90 days) from a specified date, the said period would expire in the third month on the date corresponding to the date upon which the period starts. As a result, depending upon the months, it may mean 90 days or 91 days or 92 days or 89 days”.
In the light of the law laid down by the Supreme Court in Himachal Techno Engineers (supra) and having regard to the provisions contained in Section 3(35) of the General Clauses Act, 1897, I am of the view that the appeal presented by the petitioner against Ext.P1 order on 06-11-2023 was within the condonable period mentioned in Section 107 of the CGST/SGST Acts.
Therefore, this writ petition is allowed. Ext.P3 order of the First Appellate Authority is quashed. The appeal filed by the petitioner against Ext.P1 order along with the application for condonation of delay will stand restored to the file of the First Appellate Authority, who shall pass fresh orders taking note of the observations contained herein above.
