2013 (4) TMI 556 - HC - VAT and Sales Tax

Condonation of delay of 3 years, 4 months and 12 days - appeal against penalty confirmed - Held that - There is no basis for the contention of the appellant that they genuinely felt that penalty being consequential order, separate appeal need not be filed. Having regard to the circumstances of the case, it is seen that the explanation offered by the appellant for condoning the inordinate delay of 3 years, 4 months, 12 days is wholly unsatisfactory. Therefore, except the unsubstantiated claim of omission on the part of the counsel, there is no material whatsoever before this court to accept the case of the petitioner and disagree with the conclusions arrived at by the appellate authority.

Summary

Issues:
Challenge to order rejecting application for condonation of delay in filing appeal, failure to file a separate appeal against penalty order, sufficiency of explanation for delay, application for condonation of delay dismissed, burden of proof on the petitioner to show mistake by counsel.

Analysis:
The petitioner challenged an order rejecting their application for condonation of a significant delay in filing an appeal against assessment and penalty orders. The appeal filed was only against the assessment order, omitting the penalty order. The petitioner claimed that a single appeal sufficed due to the belief that the penalty order was consequential. However, upon realizing the error during a hearing, a separate appeal against the penalty order was filed with the condonation application. The second respondent rejected the condonation application, leading to the current writ petition.

The impugned order, Ext.P6, highlighted the insufficiency of the petitioner's explanation for the delay. The order emphasized that the penalty order was communicated separately, indicating the necessity for a distinct appeal. The court noted the inordinate delay of 3 years, 4 months, and 12 days, stating that without a satisfactory explanation, condonation could not be granted. The Tribunal, in Ext.P7, deemed the appeal not maintainable due to the delay.

The petitioner's argument centered on the counsel's mistake in not filing a separate appeal against the penalty order. While courts have acknowledged that litigants should not suffer due to counsel errors, the burden lies on the client to prove the mistake. The absence of an affidavit from the counsel to support the claim of omission weakened the petitioner's case. Without substantial evidence beyond the claim of counsel's error, the court found no grounds to overturn the second respondent's decision.

In conclusion, the court dismissed the writ petition, affirming the rejection of the condonation application. The judgment underscored the importance of providing concrete evidence to substantiate claims of counsel mistakes in legal proceedings. The burden of proof rests on the petitioner to demonstrate errors made by legal representatives, highlighting the need for diligence and documentation in legal matters to avoid adverse consequences.