2019 (5) TMI 1870 - AT - Service Tax

Condonation of delay in filing appeal - delay within the condonable period of thirty days or not - reasonable cause was there or not - HELD THAT - It is the settled position of law that the Commissioner (Appeals) has limited powers in exercising his discretion as to condoning delay in filing an appeal before him and that condonation of any delay beyond ninety days (sixty plus thirty days) is forbidden - It is useful to refer to the decision of the Hon ble High Court of Gujarat at Ahmedabad in the case of RAMESH VASANTBHAI BHOJANI VERSUS UNION OF INDIA 2 2017 (5) TMI 444 - GUJARAT HIGH COURT where it was held that once there is a delay of more than ninety days in filing the appeal, the Commissioner (Appeals) has no power or authority to permit the appeal to be presented beyond such period. In the present case, the delay sought to be condoned is within the permissible thirty-day limit and not after the expiry of thirty days. The appellant has placed on record its explanation, which is not found to be wrong and it is definitely not a case involving any deliberate or negligent act on behalf of the assessee, in causing delay - It is also the settled position that the power conferred upon the Commissioner (Appeals) to condone the delay in filing appeal is to alleviate genuine sufferings of taxpayers. He has the power and corresponding duty to exercise the same when circumstances so warrant. Thus, when a public authority has the powers to do something, he has a corresponding duty vested in him to exercise his powers. The matter is remanded to the file of the first appellate authority to decide the case on merits by accepting the reasons for delay in filing the appeal - Appeal allowed in part and part matter on remand.

Summary

Issues:
Delay in filing first appeal before lower appellate authority within condonable period, merits of the case, powers of Commissioner (Appeals) in condoning delay, remand for consideration on merits.

Analysis:
The appellant challenged the rejection of its appeal by the Commissioner of G.S.T. and Central Excise (Appeals-II), Chennai, citing a delay in filing the first appeal. The appellant's advocate argued that the delay of about 18 days was due to a reasonable cause, specifically a tragic incident involving the Managing Director's wife suffering severe burn injuries during Diwali celebrations, ultimately leading to her demise. The advocate also contended that the demand was raised without considering the available documentary evidences.

The Authorized Representative for the Revenue supported the lower authorities' findings but acknowledged the absence of specific merits-related findings by the Commissioner (Appeals). The tribunal considered the arguments and documents presented, emphasizing the limited powers of the Commissioner (Appeals) in condoning delays. Citing legal precedents, the tribunal highlighted that any delay beyond ninety days is impermissible, as illustrated by relevant court decisions.

After reviewing the impugned order, the tribunal found the delay in this case fell within the permissible thirty-day limit and was not deliberate or negligent. The tribunal opined that the appellant's explanation was valid, aligning with the principles of liberal delay condonation upheld by higher courts. Consequently, the rejection of the appeal without condoning the delay was set aside, and the matter was remanded for a decision on merits by the first appellate authority.

The tribunal partially allowed the appeal, emphasizing the duty of the Commissioner (Appeals) to alleviate genuine taxpayer sufferings by liberal delay condonation. The case was remanded for a merit-based decision due to the absence of findings on merits in the impugned order, ensuring a comprehensive review of the case beyond the delay issue.