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TMI Blog2020 (9) TMI 573X X X X Extracts X X X X X X X X Extracts X X X X ..... his appeal which is already decided against him and thus trying to become eligible for such settlement scheme. Assessee has all the rights to apply for the aforesaid settlement scheme, however, once the appeal of the assessee has been dismissed and decided against it, unless the matter falls under the limited scope of section 254(2) which is not the case here, the act of the assessee to file misc. application to revive such appeals therefore cannot be entertained and encouraged merely for assessee to become eligible for such scheme. Where the assessee is aggrieved with the order of the Tribunal, the assessee is at liberty to approach the right appellate forum as so advised but cannot expect the Tribunal to become a party to its plan t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had not submitted any medical report or even an affidavit in support of his prayer and only one liner application was filed by the assessee, the Bench had rightly dismissed the appeals filed by the assessee as barred by limitation. It was further submitted that filing of an affidavit in support of his prayer of delay in filing the appeals due to ill-health cannot be accepted at this stage under the current proceedings u/s 254(2) which are limited to rectifying any mistake apparent from record at the time of passing the order by the Tribunal. It was accordingly submitted that there is no merit in the present misc. petitions and the same should be dismissed. 4. We have heard the rival contentions and perused the material available on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered by the Hon ble Supreme Court and the delay was condoned. The ratio decidendi of the Hon ble Supreme Court decision (supra) therefore is not to consider the explanation blindly but to consider the explanation of the assessee regarding ill-health which is supported by an affidavit and/or a medical report and the same cannot be read and understood to accept merely an assertion of ill health even in absence of an affidavit and/or a medical report. Further, even on perusal of the affidavit now filed by the assessee, he has merely reiterated which has been stated earlier and has stated that due to bad health and high blood pressure, he was advised bed rest by doctor and accordingly couldn t file the appeal. To our mind, said assertion o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee which is not supported by any medical report or an affidavit and thus remain unsubstantiated, we are unable to accede to the request of the assessee for condoning the delay. The delay cannot be condoned merely because the assessee's case calls for sympathy or merely out of benevolence. For the exercise of discretion in condoning the delay, it must be established beyond the shadow of doubt that the assessee was diligent and was not guilty of negligence on its part. It is not a matter of delay of few days rather the delay has happened for 546 days. Therefore, it is incumbent on part of the assessee to come forward and explain the circumstances which prevented him from filing the appeal in time. It is also noted that there is consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 02/07/2020 (Ajay Kumar Jain) 6. On perusal of the above letter, we therefore find that as per the assertion of the assessee, he wishes to opt for the Vivad Se Vishwas Scheme. One of the conditions for being eligible for such settlement scheme is that the appeal of the assessee should be pending on the specified date before the Tribunal and once, the assessee s application is accepted by the Appropriate Authority under the said scheme, the assessee is required to withdraw his appeal before the Tribunal. By filing the present misc. applications, we therefore find that the assessee is trying to revive his appeal whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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