Whether condonation of delay can be allowed if consultant failed to file an appeal on behalf of assessee due to health issues ?

PJ/CASE LAW/2015-16/2983

Case:- MAHARAJA TOURISM DEV. P. LTD. VersusSECY., MINISTRY OF FIN., NEW DELHI

Citation:- 2015 (39) S.T.R. 384 (Mad.)

Brief facts:-The relevant facts of the case is that the appeal by the assessee is directed against the Final Order No. 40269/2013, dated 27-6-2013 on the file of Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai.By the said order, the Tribunal rejected the application filed by the appellant seeking condonation of delay of 375 days in filing such application. The appeal was filed against the order passed by the Commissioner of Service Tax (Appeals) dated 27-8-2010, by which the appeal was rejected, thereby the order passed by the Assistant Commissioner of Service Tax dated 16-1-2009 was confirmed which raised a demand of Rs. 1,60,055/- including Service Tax and education cess, demand of interest under Section 75 of the Finance Act, 1994 and imposed penalty equivalent to amount of service tax and further penalty under Section 76 of the Finance Act, 1994.

Appellant’s contention: -In the petition for condonation of delay, appellant contended that the order passed by the First Appellate Authority was received on 3-9-2010 and they should have preferred the appeal on or before 3-12-2010, but appeal was preferred only on 15-12-2011 i.e., after a delay of 375 days. The reason which was assigned by appellant was that the copy of the First Appellate Authority’s order was handed over to Ms. Natasha Jhaver, Chartered Accountant to prepare an appeal against the said order during the month of October and the appellant was led to believe that the appeal and stay application must have been filed but only when the letter of tax recovery dated 2-12-2011 was received from the Department, it came to light that the appeal was not filed by the consultant due to her maternity and health problems. The appellant also produced doctor certificate in support of the medical condition of the consultant. Aggrieved by order of rejection of petition seeking condonation, the assessee has preferred the present Civil Miscellaneous Appeal.

Respondent’s contention:- The Revenue did not dispute the correctness of the statement given by the consultant who appeared for the appellant nor did they doubt her health condition. The Tribunal held that it is a case of negligence and inaction on the part of the appellant and there is no sufficient reason for condonation of delay.

Reasoning of judgment:- Oncareful consideration of submissions made by both sides, it was held that the appeal preferred by the assessee was presented beyond the period of limitation with an application to condone the delay of 375 days in filing the appeal stating that due to the maternity and health problems of the consultant engaged by the appellant. The Revenue did not dispute the validity of the statement of the appellant nor was it their case that the appellant filed the appeal belatedly for certain mala fide reason with a deliberate intention to delay the matter.The Hon’ble Supreme Court in the case of State of Rajasthan v. Balkishan Mathur reported in (2014) 1 SCC 592 pointed out that in a situation where there has been gross negligence or deliberate inaction or lack of bona fides, broad and liberal view is always taken so as to advance substantial justice instead of terminating the proceedings of the technical ground of limitation. Unless the explanation furnished for the delay is wholly unacceptable or if no explanation whatsoever is offered or if delay is not ordinary and third party rights had become embedded during the interregnum and accordingly courts should lean in favour of condonation.

Decision: -Civil Miscellaneous Appeal is allowed and connected miscellaneous petitions were closed.

Comment:- The appellant filed the appeal belatedly for a bonafide reason and there was no mala fide reason with a deliberate intention to delay the matter.The Hon’ble high court held that the consultant of the appellant having suffered from certain medical ailments, which was proved by producing medical record and in such unfavorable conditions, it is appropriate that delay in filing the appeal before the Tribunal
should be condoned. Therefore, case went in favour of assessee.

Prepared by:- Manish Satyani

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PJ/CASE LAW/2015-16/2983

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