Timely authorization for departmental appeal under Section 35B(2) is mandatory; delayed, unexplained action was held unsustainable.

Section 35B(2) requires the Commissioner to record a timely opinion that the order under Section 35A is not legal or proper before directing an authorised appeal. Where authorisation was issued long after the Commissioner (Appeals)'s order and beyond the statutory period, and no explanation was given for the delay, the purported appeal action lacked legal foundation and was not a bona fide exercise of power. On those facts, the restoration application was held not maintainable and was rejected.

---

---

Issues: Whether the department's restoration application was maintainable when authorisation to appeal under Section 35B(2) was issued long after the Commissioner (Appeals)'s order and without a timely recorded opinion that the order was not legal or proper.

Analysis: Section 35B(2) requires the Commissioner to form an opinion that the order under Section 35A is not legal or proper before directing an authorised officer to appeal. The impugned order was passed in 1994, while the authorisation was issued only in 1999, well beyond the statutory period. The application also did not explain the delay. In these circumstances, the purported action was held to be without legal foundation and not a bona fide exercise of power.

Conclusion: The restoration application was not maintainable and was rejected.

---