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TMI Blog2020 (2) TMI 1440X X X X Extracts X X X X X X X X Extracts X X X X ..... long 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office, it was found that the company was served with order-in-original on 2-1-2008 but the appeal could not be filed and finally the appeal was filed after a delay of 3666 days which is sought to be condoned by the appellant. 2. After hearing both the parties, this Tribunal vide its Final Order, dated 3-7-2018 dismissed the COD application being devoid of merit and resultantly appeal was also dismissed. Thereafter, the appellant filed appeal before the Hon ble High Court of Kerala against the order dated 3-7-2018 and the Hon ble High Court set aside the order passed by the Tribunal and directed the appellant to file a better affidavit explaining the cause of the delay. Before the Hon ble High Court, the appellant submitted that there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecords of the Company was searched, draft appeal drawn up by the erstwhile Advocate was located and on the basis of those copies, an attempt was made to locate the file in the office of the Tribunal. It was noticed that the appeal was not filed and accordingly, certified copy of order was applied for, new counsel was briefed and appeal was filed. 4. During the course of enquiry within the Company, it was noticed that the person handling these matters had resigned from the Company and it was he who was handling the appeals. It appears that he had omitted to file the appeal impugned. During the course of search at the office of the Department, it was noticed that the Company was served with order-in-original on 2-1-2008. The appeal th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id the fees for filing the appeal and draft was also prepared by the said Advocate and was signed by the Managing Director but in spite of that, the Advocate did not file the appeal for the reasons best known to him. She also submitted that the Department was also negligent in effecting the recovery against the appellant. She also submitted that the assessee should not suffer because of the negligence of the Advocate. 5. On the other hand, Learned AR submitted that the reasons given in the affidavit by Mr. Safeer is also not very convincing. He further submitted that there is an inordinate delay in filing the appeal and the appellant has conceded that they were negligent in following the matter with the Advocate. 6. After considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. (iii) Every day s delay must be explained does not mean that a pedantic approach should be made. Why not every hour s delay, every second s delay? The doctrine must be applied in a rational common sense pragmatic manner. (iv) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. (v) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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