Condonation of delay in filing of appeal before Commissioner(Appeals)

[ROHIT GOEL]

Dear Sir,

Please examine the facts of case:

Ex parte service tax adjudication order for the period of 1-4-2010 to 31-3-2012 in case of assessee was passed on 02.07.2018 and received on 23.07.2018. On 27.07.2018 assessee filed rectification application and on advise of counsel waited for rectification before filing appeal. Thereafter on 22.02.2019 recovery notice received and again on 27.02.2019 assessee filed another rectification. Since no reply was received till April, assessee filed appeal on 29.04.2019. This has resulted delay of 218 days. On hearing, Commissioner dismissed the appeal being barred by limitation u/s 85(3A) of FA 1994 and did not pass any judgment on merit.

The judgment of various benches of ITAT including Chandigarh as well as P&H HC (2017 (11) TMI 1712 - PUNJAB AND HARYANA HIGH COURT-DIRECTOR, POST GRADUATE INSTITUTE OF MEDICAL EDUCATION AND RESEARCH, CHANDIGARH VERSUS THE COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX (APPEALS) , CHANDIGARH AND OTHERS) state that Commissioner has no power u/s 85(3A) to condone delay beyond 1 month.

Total demand raised ₹ 28 lakh out of which ₹ 22 lakh being paid but credit not allowed on the persumption that returns not filed whereas infact such returns were filed by the assessee. Further, Adjudication officer invoked extended period of limitation on the basis that returns were not filed and assessee was claiming abatement available to commercial and industrial construction service providers whereas assessee is providing works contract services.

Opinion requested:

1. Is there any way to contest before CESTAT to delay condone of 218 days in filing appeal before Commissioner Appeals caused due to advise of counsel ?

2. Rectification for allowing prepaid taxes and wrongly invoking extended period of limitation was filed but not decided by Department? What is the remedy and in case the same is rejected, can ground of allowance of prepaid taxes and incorrect invocation/time barring be contested in appeal against the order of rectification?

AI Summary

Condonation of delay in appeals: contesting dismissal for exceeding limited condonation power and wrongful extended period invocation.
The Commissioner (Appeals) dismissed an appeal as time barred after the assessee filed rectification applications and, following counsel's advice, delayed filing the appeal, resulting in a 218 day delay; the matter raises whether failure to decide rectification, counsel's advice, and proof of filed returns can justify condonation of delay before the tribunal and whether the department wrongly invoked extended limitation when returns were in fact filed.