TaxTMI 
TaxTMI 
1999 (2) TMI 92
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.... 3. The Ld. Counsel of the appellant pleaded that the delay in filing of the appeal was only one day and the Ld. Commissioner (Appeals) entertained the appeal, heard the arguments at length and also accepted the arguments put forth by the appellant. The Ld. Counsel of the appellant pleaded that at no stage the appellant was informed regarding delay in filing of the appeal. Alongwith the arguments, the appellant filed an affidavit of Sh. A. K. Khullar, Managing Director, J & K Small Scale Industries Development Corpn. Ltd., Gandhi Nagar, Jammu. In the 'affidavit' the Managing Director, who is principal officer of the Company made following deposition :- "1. That I am Managing Director of J & K Small Scale Industries Development Corporation Limited, Gandhi Nagar, Jammu, appellant. 2. That the abovesaid concern is a J & K Govt. Undertaking. 3. That the appeal which was filed before the Ld. Commissioner (Appeals) was signed by my predecessor on 28th of April, 1987. 4. That our official immediately rushed, to file the appeal on the same date i.e. 28th April, 1997 after getting it signed by my predecessor, to the office of the Ld. Commissioner (Appeals), Jammu in a vehicl....
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....e shall be excluded or) (c) in any other case, the date on which limitation of the order sought to be appealed against is served. (3) The Dy. Commissioner (Appeals) [or, as the case may be, the Commissioner (Appeals)] may admit an appeal after the expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting it within that period. (4) No appeal under this Chapter shall be admitted unless at the time of filing of the appeal - (a) where a return has been filed by the assessee, the assessee has paid the tax due on the income returned by him; or (b) where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him; Provided that [in a case falling under clause (b) and] on an application made by the appellant in this behalf, the Dy. Commissioners (Appeals) or as the case may be, the Commissioner (Appeals) may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of provisions of (that clause)" Section 249(3) gives powers to the Ld. Commissioner (Appeals) to admit an appeal after the expiration of the period if....
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....bsence of an application for the condonation of delay. There are also various compelling circumstances which also makes us to cast upon the responsibility on Commissioner (Appeals) to mention the legal infirmity or defect to the appellant because appellant can remain under bona fide impression that his appeal is within time particularly when delay is for very short period. The other reason for us to cast upon this responsibility is that the authorities below have to give justice to an aggrieved party and denial of justice on simple technical default without going into merit of the grievance of the appellant will not be in tune with discharge of natural justice. The Hon'ble Punjab & Haryana High Court has held that law is not based on technicalities in the case of Chaman Lal Bros. (P.) Ltd. vs Punjab State [1961] 12 STC 43 (Punj). 7. Section 249(3) gives a discretionary power to the appellate authority because the sections speaks of 'may' or 'may not'. This discretion should be used in most judicious manner and in a manner which will not harm the interest of the appellant on mere technicalities. The appellate authority must use judicial discretion in a manner that the appellant g....
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....le as it is realized that : 1. Ordinarily, a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happens is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay ? The doctrine must be applied in a rational, common sense and pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. 6. It must be grasped that the judiciary is respected not on account of its power to ....