2007 (8) TMI 664

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..... any tax. Liability of unlawful tax is not comprehended in law. Thus it will be just and proper that the second appeal of the dealer may be decided on merits. The impugned order of the Tribunal rejecting the delay condonation application is set aside. The delay in filing the second appeal is condoned. The Tribunal is directed to decide the appeal on merit
VIKRAM NATH , J. VIKRAM NATH J.--With the consent of learned counsel for the parties, this revision is being disposed of finally at the admission stage itself, as the matter has not been decided by the Tribunal on merits but the second appeal of the dealer has been dismissed on the ground of delay. Heard Sri Nishant Misra, learned counsel for the applicant and learned Standing Counsel .....

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..... fore the Tribunal for the condonation of delay, the assessee had stated in para 2 that the first appellate order was not served upon him and he got the certified copy only on March 12, 2007. If this fact is correct, the question of limitation may not arise at all for the filing of the second appeal. List on May 21, 2007." Pursuant to the aforesaid order the learned Standing Counsel has filed a counter-affidavit. In para 4 of the same it is alleged that the order dated December 18, 2002 passed by the appellate authority was served upon Sri Sunil Kumar on December 29, 2002, who was the authorised representative of the applicant. It has further been stated in para 6 of the counteraffidavit that Sunil Kumar has been acting as authorised r .....

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..... not filing appeal in time. The apex court in various decisions has held that in the matters of condonation of delay pedantic approach should not be adopted. It must be examined as to whether party applying for condonation of delay was gaining any benefit by causing such delay and if no such benefit or motive can be noticed ordinarily delay should be condoned. Present case relates to imposition of tax. If the dealer is permitted to file second appeal and it is heard on merits, it may succeed and may not be liable to pay tax. Such an opportunity should be given to a party who may be entitled to establish that it was not liable to pay any tax. Liability of unlawful tax is not comprehended in law. In view of the facts and circumstances and .....

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