Date of knowledge and mandatory pre-deposit governed restoration of an ex parte appeal

Where an ex parte order was not shown to be within the assessee's knowledge, limitation for filing the appeal was treated as running from the date of knowledge, and the delay was condoned on that basis. The statutory pre-deposit requirement, however, was treated as mandatory and was not waived; time was granted to make the deposit so the appeal could be examined on merits. The appellate order was set aside, the appeal restored, and the matter remitted for fresh consideration after compliance with the deposit condition.

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Issues: (i) whether the delay in filing the appeal against the ex parte order could be condoned by reckoning limitation from the date of knowledge; (ii) whether the statutory pre-deposit was still required for the appeal to be considered on merits.

Issue (i): whether the delay in filing the appeal against the ex parte order could be condoned by reckoning limitation from the date of knowledge.

Analysis: The petitioner asserted lack of notice and stated that the impugned order and show cause notice came to its knowledge only later. The order under challenge was treated as having been passed ex parte. In these circumstances, limitation was held to run from the date of knowledge, and the delay in preferring the appeal was condoned in exercise of writ jurisdiction.

Conclusion: The delay was condoned and the appeal was directed to be treated as filed within limitation.

Issue (ii): whether the statutory pre-deposit was still required for the appeal to be considered on merits.

Analysis: The requirement of pre-deposit under the statutory scheme governing the appeal was treated as mandatory. The plea for exemption from deposit was not accepted, and time was granted to make the deposit so that the appellate authority could examine the appeal on merits.

Conclusion: The pre-deposit requirement was upheld, and the petitioner was granted time to comply.

Final Conclusion: The appellate order was set aside, the appeal was restored to the appellate file, and the matter was remitted for consideration in accordance with law after compliance with the pre-deposit requirement.

Ratio Decidendi: Where an ex parte order was not within the assessee's knowledge, limitation for appeal may be computed from the date of knowledge, but the statutory pre-deposit condition for pursuing the appeal remains obligatory.

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