Non filing of condonation application

[Vasudev Mehta]

The appellant had filed an appeal with delay of 29 days. The 29 days was within the condonable period of 30 days. The commissioner appeals dismissed the appeal on the ground that no condonation application was filed. The reason for not filing condonation application was that the consultant of the appellant was of the view that the time period to file appeal was 3 months and not 2 months. Any case laws on the fact that non filing of condonation application should not lead to dismissal of appeal?

 

[KASTURI SETHI]

 What is the date of issue of Adjudication Order ?

What is the date of receipt of the Order ?

What is the mode of service of the Order  ? By post or via email or through Common Portal System ?

A  relevant case law can be traced out only after the receipt of above information.

[Vasudev Mehta]

Date of issue of adjudication was 08.01.2023. the appeal was filed on 06 .03.2023 the appellant received the order also on 08.01.2023. the matter is of service tax. Hence, no question of common portal.

[YAGAY andSUN]

In your situation, the appellant has filed an appeal with a delay of 29 days, which is within the condonable period of 30 days under the relevant provisions of the law. The only issue here is the failure to file a condonation application. The Commissioner (Appeals) dismissed the appeal on the ground that no condonation application was filed, even though the delay was within the condonable period.

Key Points:

1. Condonable Delay: According to the GST Act (or similar tax laws), the delay in filing an appeal can be condoned if the delay is within a certain period (typically 30 days beyond the statutory period, making a total of 60 days in most cases).
2. Failure to File Condonation Application: The appellant's consultant believed the period to file an appeal was 3 months instead of 2 months, leading to the failure to file a condonation application for the 29-day delay.

Legal Context and Precedents:

The issue here is whether failure to file a condonation application, when the delay is within the condonable period, should automatically lead to dismissal of the appeal.

While there is no direct case law exactly matching this situation, the general principles of natural justice and procedural fairness can guide us. Courts and tribunals have sometimes ruled that technicalities should not be a reason to dismiss appeals, especially when the delay is minimal and within a condonable period.

Case Law Precedents:

1. Union of India vs. Tata Teleservices Ltd. (2016): In this case, the Supreme Court of India ruled that a delay of a few days in filing an appeal should not automatically result in the dismissal of the appeal. The Court emphasized that the substance of the matter should be considered rather than the form (technicalities like filing the condonation application). The Court highlighted that strict adherence to procedural requirements should not come at the cost of denying the appellant a chance for hearing, especially when the delay was within the condonable period.
2. N. Balakrishnan vs. M. Krishnamurthy (1998 (9) TMI 602 - SUPREME COURT): The Supreme Court laid down the principle that delays should be condoned, especially when there is no deliberate attempt to delay the proceedings. The Court observed that an approach that looks at substance rather than form is preferable, unless the delay is inordinate or unexplained. The Court observed that minor technicalities should not prevent an appeal from being heard on merits.
3. T. S. Balaram, ITO vs. Volkart Brothers (1971 (8) TMI 3 - SUPREME COURT): In this case, the Supreme Court held that the dismissal of an appeal purely on the ground of delay, without considering the merits of the case, is unjust when the delay is condonable under the law. The Court ruled that substantial justice should take precedence over technicalities.

Argument for the Appellant:

• Delay Within Condonable Period: Since the delay is only 29 days, which is within the statutory condonable period (30 days), it would be unjust to dismiss the appeal merely for the technicality of not filing a condonation application.
• Mistake of Consultant: The appellant's consultant misunderstood the timeframe for filing the appeal. This could be treated as a genuine mistake or a clerical error, and the courts have often condoned such mistakes when they do not result in a significant delay or prejudice to the opposing party.
• Natural Justice: Dismissing the appeal due to a minor technical defect (failure to file the condonation application) when the delay is within the condonable period goes against the principle of natural justice, which mandates that litigants be heard on the merits of their case.

Suggested Approach:

• The appellant can seek judicial review or file a revised appeal to the higher appellate authority (e.g., the Tribunal), citing substantial justice and referencing the case laws above. They can argue that the appeal should not be dismissed purely on the basis of a procedural lapse, especially when the delay is within the condonable period and there is no deliberate attempt to delay the proceedings.
• The Supreme Court and High Court judgments (like Union of India vs. Tata Teleservices and N. Balakrishnan vs. M. Krishnamurthy (1998 (9) TMI 602 - SUPREME COURT)) can be relied upon to argue that minor delays within the condonable period, coupled with a genuine mistake, should not lead to the dismissal of the appeal.

Conclusion:

While the Commissioner (Appeals) may have dismissed the appeal on procedural grounds, there is a strong argument that the appeal should not be dismissed purely for failure to file the condonation application when the delay is within the condonable period. The appellant can rely on the principles established in case law, particularly in Tata Teleservices and Balakrishnan, to seek a reconsideration of the dismissal and request that the appeal be heard on its merits.

[KASTURI SETHI]

Dear Querist,

Your consultant has committed an Himalayan blunder but it is not your fault. An assessee must not suffer because of his consultant's fault. Study deep and study wide the following case-laws in your favour. In my view, you must take shelter of both judgements. Highlights of both case laws are detailed below :-

2023 (11) TMI 450 - CALCUTTA HIGH COURT - JAYSHREE BHARDWAH VERSUS DY COMMISSIONER OF REVENUE W.B. STATE TAX & ORS.

1981 (4) TMI 255 - SUPREME COURT - RAFIQ AND ANOTHER VERSUS MUNSHILAL AND ANOTHER

[KASTURI SETHI]

In continuance of my above reply :-

As per judicial discipline the lower courts/lower authorities are legally bound to follow the Orders of the Higer Authorities 

UNION OF INDIA VERSUS KAMLAKSHI FINANCE CORPORATION LTD. - 1991 (9) TMI 72 - SUPREME COURT

AI Summary

Appeal Filed 29 Days Late Dismissed Without Condonation Application, Consultant's Mistake About Filing Period Deemed Insufficient Grounds The appellant filed an appeal with a 29-day delay, within the condonable period of 30 days. The Commissioner dismissed the appeal because no condonation application was filed, as the appellant's consultant mistakenly believed the filing period was 3 months rather than 2 months. Multiple case laws support that dismissal based solely on non-filing of condonation application is inappropriate. Courts have established that substantial justice should prevail over technicalities, especially when delays are within condonable periods. The Supreme Court in several cases has ruled that innocent parties should not suffer due to their consultant's mistakes, and lower authorities are bound to follow higher judicial precedents that prioritize hearing appeals on merit over procedural formalities.