TaxTMI 
TaxTMI 
2021 (12) TMI 620
X X X X Extracts X X X X
X X X X Extracts X X X X
....which was required to be filed within two months of the receipt of the order of the adjudicating authority, because if he had filed the appeal his dues could not qualify the meanings of 'tax due' in terms of Section 123 of the Finance ( No.2) Act, 2019 (which contained the SVLRDS Scheme 2019). However, since the financial position of the appellant did not allow to avail the scheme, it could not be filed before 01.10.2019. 4. It is impressed upon that the said reason has wrongly been held as non-genuine reason. The order under challenge is accordingly prayed to be set aside. 5. To rebut these submissions, Ld. Departmental Representative has laid emphasis on the findings of the Commissioner (Appeal) in paragraph 8 of the Order under challenge. It is impressed upon that there is no infirmity when it is held that the provisions of the Act are required to be followed strictly according to which the stipulated time for filing the appeal was 60 days. The reasons quoted is accordingly, not a sufficient cause for exercising the discretion as is provided under proviso to section 85(3) A of Finance Act, 1994. The appeal is accordingly, prayed to be dismissed. 6. After hearing the parties, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as announced same could not have been opted for. Hence till 01.09.2019, the time taken has genuinely been taken by the appellant. 9. For the period from 1.9.2019 till October 2019 when the appeal was filed by for the appellant before Commissioner (Appeals), the reason for delay is quoted as financial position of the appellant which did not allow the appellant to avail the benefits of the scheme. To elaborate this situation, learned Counsel mentioned that appellant is a contractor and the payment with respect to work done was always irregular and used to be received after the completion of the work. Hence another one months was availed awaiting the payments to have sufficient funds to apply under the said scheme. It is only when no sufficient payments could be received by the appellant in reasonable time and he could not apply under SVLRDS; that he immediately filed the appeal before Commissioner (Appeals). The said submissions have been held as insufficient by Commissioner (Appeals) to reasonably explain the delay in filing the impugned appeal due to which Commissioner (Appeals) has not exercised the discretion to condone the delay of 28 days for filing the appeal before him as st....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... for an order to set aside abatement, the period of limitation is 60 days from the date of abatement. Section 5 of the Limitation Act provides that any application may be admitted after the prescribed period if the applicant satisfies the court that he had sufficient cause for not making the application within such period. 4.4) Sub-rule (5) of Rule 4 of Order 22 now gives a clear indication as to what will be sufficient cause. It provides that where the appellant was ignorant of the death of a respondent, and for that reason could not make an application for the substitution of the legal representative of the deceased respondent under Rule 4 within the time specified in the Limitation Act, 1963, and in consequence, the appeal has abated, and the appellant applies after the expiry of the period specified in the Limitation Act for setting aside the abatement and also for the admission of that application under section 5 of the Limitation Act, on the ground that he had by reason of such ignorance, sufficient cause for not making the application within the period specified in the Limitation Act, the court shall, in considering the application under section 5 of the Limitation Act, ha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t of bonafides, deliberate inaction or negligence on the part of the appellant. (ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement. (iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation. (iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of cour....