By TIOL News Service

MUMBAI, DECEMBER 05, 2018: AN application has been filed seeking condonation of delay of 215 days in filing the appeal.

The reason given is that the person concerned left the job without intimating the receipt of the Order-in-Appeal to the management.

The appellant submits that they came to know about passing of the impugned order only when Revenue approached them for recovery of the dues in December 2017 and, thereafter, they approached the range office, obtained a copy of the order and filed an appeal on 25.03.2018.

The Member (Judicial) referred to the apex court decisions in Land Acquisition Anantnag & Anr. Vs. Mst. Katiji & Ors. - 2002-TIOL-444-SC-LMT and State of Nagaland vs. Lipok AO - 2005-TIOL-185-SC-LMT wherein it is observed that - "Every day's delay must be explained" does not mean that a pedantic approach should be made; that there is no presumption that delay is occasioned deliberately or on account of culpable neglligence, or on account of malafides; that a litigant does not stand to benefit by resorting to delay and in fact he runs a serious risk; that rules of limitation are not meant to destroy the rights of party and the expression "sufficient cause" should be considered with pragmatism in justice oriented approach.

It is further observed -

"3. Though we note that the appellants have not given the details as regards the leaving of job by the concerned person, subsequent procurement of the copy from the Range office but keeping in view that the filing of appeal involves the right of the assessee to challenge the impugned order before the higher appellate forum and appreciating the fact the amount involved is only of Rs.2.50 lakhs approx, as also by appreciating the prima facie merits of the case, and keeping in view the various Supreme Court decisions referred supra laying down that such refusal to condone the delay affects the assessee's right to appeal and as such a liberal approach should be adopted unless there are evidences to show that such delay was intentional, we are of the view that the delay should be condoned subject to the appellant paying some cost."

Accordingly, the Member (J) held that subject to the assessee paying a cost of Rs.2000/- within one month, the delay would be condoned.

The Member (T) did not agree with this order and noted that there is no explanation explaining the day to day delay.

The Member observed -

"7. The appeal is a right but circumscribed certain condition. It is not an absolute right for the assessee. Appeal has to be filed within the prescribed period of limitation. In case of delay, appellant has to explain and thereafter only a Condonation of Delay can be allowed. In absence of any plausible and just cause of delay, supported by necessary affidavits and document COD application should be dismissed and consequently the appeal."

In view of the difference of opinion, the matter is placed before the President for reference to the third Member.

(See 2018-TIOL-3657-CESTAT-MUM)