Belated petitions should be accepted unless delay is due to malafide intention: High Court

Taxpayer's petition, with a delay of 3.5 years, accepted by High Court.

This intra court appeal by the writ petitioner is directed against the order passed by single bench of this court.

The above writ petition was filed by the appellant challenging an order passed by the appellate authority. The learned Single Bench dismissed the writ petition on the ground that the writ petition was filed after a period of 3 and ½ years. The explanation given by the appellant is that as against the order passed by the appellate authority, the appellant has a remedy of filing an appeal before the GST Tribunal, which is yet to be constituted in the State of West Bengal. The appellant, therefore, would contend that the limitation would start to run only after a notification is issued constituting the Tribunal.

We are not persuaded to accept the said submission. However, we are also not able to convince ourselves with regard to the conclusion arrived at by the learned Single Bench in dismissing the writ petition solely on the ground of delay of 3 and ½ years. We are convinced to say so that the dispute is a classification dispute as to whether the product manufactured and marketed by the appellant is a carbonated beverage with fruit juice or a carbonated beverage.

The issue being a recurrent issue and the Tribunal being the last fact finding authority, in our view, the appellate remedy before the Tribunal is not only efficacious but an effective remedy as well. Since the Tribunal is yet to be constituted, the appellant having left with no other remedy is compelled to approach this Court invoking its jurisdiction under Article 226 of the Constitution of India.

Delay and laches are not to be calculated solely by the length of the time taken by the party to approach the legal forum. It is elementary principle that none stands to benefit by lodging an appeal or a petition belatedly. Unless and until there are material to show that owing to mala fide intentions and with certain ulterior motive, the petition was belated filed. We find that there is no such allegation against the appellant.

Thus, considering the peculiar facts and circumstances of the case, this Court is of the view that the writ petition should be heard and decided on merits rather being rejected on the ground of delay and laches. However, to be entitled to such benefit, the appellant is put on certain conditions.

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Period of Limitation

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Pre-deposit of demand

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