2020 (2) TMI 1440 - AT - Service Tax

Condonation of delay of 3666 days in filing the present appeal - appellant submitted that there is no intentional delay in filing the appeal because for the subsequent period the appeal is still pending before the Tribunal and in respect of another period the appeal has been allowed also - HELD THAT - Admittedly the appeal was filed after an inordinate delay of 3666 days. The reasons given for such a long delay are that the officer who was dealing with the legal affairs has since resigned. Further the appellant engaged an Advocate Shri Frankur D. Jayan whom all the papers were handed over along with his fees and the said Advocate prepared the draft of the appeal. The said draft prepared by the Shri Frankur D. Jayan has also been filed on record, which shows that the appeal was drafted by the said Advocate but the same was not filed in the Tribunal - in the present case there is no deliberate and intentional delay on the part of the appellant because for the subsequent period the appellant has filed the appeal which is still pending and had they knew about the non-filing the earlier appeal they would have filed the same also. Further, it is a settled law that the assessee should not suffer on account of the mistake of the Advocate. Admittedly there is negligence on the part of the appellant to follow up the matter with concerned Advocate. For their negligence we can impose cost on them but dismissing the appeal would cause irreparable loss and hardship to the appellant - the delay is condoned subject to payment of cost of ₹ 30,000/- - application allowed.

Summary

Issues:
Delay of 3666 days in filing the appeal, Condonation of delay, Negligence on part of appellant and advocate, High Court's direction to file a better affidavit explaining the cause of delay, Appellant's submission of no intentional delay, Reasons for delay provided by the appellant, Negligence of the Department in effecting recovery, Inordinate delay in filing the appeal, Advocate's negligence in not filing the appeal, Appellant's faith in the advocate, Principles laid down by the Hon'ble Apex Court regarding condonation of delay, Imposition of cost on the appellant for negligence.

Analysis:
The case involved an application seeking condonation of a delay of 3666 days in filing an appeal. The appellant stated that the delay was due to the negligence of the person handling the legal affairs who had resigned from the company. The appellant engaged an advocate who prepared the draft appeal but failed to file it, leading to the delay. The appellant argued that there was no intentional delay and that they had faith in their advocate. The Tribunal initially dismissed the application, but the High Court directed the appellant to file a better affidavit explaining the delay. The appellant submitted detailed reasons for the delay, emphasizing inadvertent error and lack of wilful conduct.

The Tribunal considered the submissions of both parties and found that the delay was indeed inordinate. However, they noted that there was no deliberate delay on the part of the appellant. The Tribunal cited the principles laid down by the Hon'ble Apex Court regarding condonation of delay, emphasizing the importance of substantial justice over technical considerations. The Tribunal acknowledged the negligence of the appellant in following up with the advocate but decided to condone the delay, subject to the payment of a cost of &8377; 30,000. The Tribunal highlighted that dismissing the appeal would cause irreparable loss and hardship to the appellant, hence the decision to condone the delay.

In conclusion, the Tribunal recognized the negligence on the part of the appellant and their advocate but opted to condone the delay considering the principles of substantial justice and the potential injustice of dismissing the appeal. The imposition of a cost was deemed sufficient to address the negligence while ensuring that the appellant's case is heard on merits.