Whether delay in filing appeal due to negligence of employee can be condoned?

PJ/Case Law /2016-17/3229

Case:- MAHENDRA JANUBHA ZALA VERSUSCOMMISSIONER OF SERVICE TAX, RAJKOT

Citation:- 2016 (43) S.T.R. 96 (Tri. - Ahmd.)

Brief Facts:- The brief facts of the case arethat the applicant is a proprietorship firm and the proprietor was suffering from eye problem from July, 2014. He was advised to take complete rest for about two months. In the meantime, on 21-8-2014, the impugned order was served on him and he was not aware of receipt of adjudication order by his employee on account of his absence from business due to health problem and misplacing of order by employee. He filed the appeal after the delay of 130 da ys.

Appellant’s Contention:- Learned counsel on behalf of the applicant submits that the applicant is a proprietorship firm and the proprietor was suffering from eye problem from July, 2014. He was advised to take complete rest for about two months. In the meantime, on 21-8-2014, the impugned order was served on them and their employee Shri Tapubhai Nathabhai Sadiya received the order and kept in some file, which was not informed to the proprietor. After joining the business in March, 2015, the proprietor received a telephonic message from the department for recovery of penalty, and then, the proprietor immediately took steps to file appeal and the appeal was filed on 31-3-2015. In support of condonation of delay, the applicant filed an affidavit of the proprietor and its employee. He submits that there is no negligence and inaction on the part of the applicant and therefore, the delay in filing appeal, should be condoned.

Respondent’s Contention:- The learned authorized representative on behalf of the Revenue submits that the delay was occurred due to negligence of the employee of the applicant firm and this cannot be a reason to condone the delay. He further submits that eye problem of the proprietor was even before receiving the impugned order. The main contention of the learned authorized representative is that the delay is only for the negligence of the employee of the applicant and therefore, delay should not be condoned.

Reasoning of Judgement:- The main contention of the applicant is that the impugned order was received by his employee on 21-8-2014 and he had left the job from 15 September, 2014; and the proprietor of the applicant firm was not aware of receipt of this impugned order. The honourable authority finds that there is no dispute that the order was served on the applicant on 21-8-2014. The impugned order was misplaced by the employee of the applicant firm. The discretionary powers to condone the delay under the provisions of Finance Act would be exercised when the applicant is vigilant and serious. In the present case, the delay is caused due to negligence and inaction on the part of the employee of the applicant. Hence, the delay of 130 days in filing the appeal cannot be condoned.
In view of the above findings, the appeal is dismissed.

Decision:- Appeal dismissed.

Comment:- The analogy of the case is that as there is no justifiable reason stated by the appellant for delay of 130 days in filing the appeal, the delay cannot be condoned. Consequently, the appeal filed by the applicant is also dismissed.

Prepared by:- Akshit Bhandari

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PJ/Case Law /2016-17/3229

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