Taxindiaonline.com Taxindiaonline.com Taxindiainternational.com HRindiaonline.com
 
LOGIN
Forgot Password |  Register
Saturday , April 18, 2015 | Updated : Apr 18, 23:24 IST
Income Tax    Customs    Excise    Service Tax    FEMA    DGFT    SEZ    Misc    Pitara    Budget   
About Us Contact Us Advertise
Taxindiaonline.com Taxindiaonline.com Taxindiainternational.com
NEWS FLASH
 
CBDT to re-design New ITR Forms, to make it simpler I-T - Whether exemption u/s 10 can be granted to assessee, whose income forms a part of income from property held under trust - YES: HC (See 'Breaking News') Automatic information exchange only method to deal with black money: Jaitley (See 'Mixed Buzz') ST - BSS - Appellant has been funded by Central Govt as well as State Govt through MPCB for setting up Butibori CETP Plant - retrospective exemption granted by s.145 of FA, 2012 - Demand not sustainable in law: CESTAT (See 'Breaking News') India ready to cope with international shocks: FM (See 'Mixed Buzz') Ratan Tata urges India Inc not to get disillusioned with Modi Govt so fast Trade deficit goes up to USD 137 bn between April-Mar, 2015 (See 'Mixed Buzz') Govt simplifies SEZ Rules relating to inter-unit transfers (See Instruction 84 in 'SEZ') Lahiri Committee to function from Suite No. 215, Janpath Hotel; invites suggestions from trade industries CBDT issues transfer order of 43 AC/DCITs (See Transfer in 'Pitara') Broadband Service penetration: TRAI asks Govt to start it from schools (See 'Mixed Buzz') CBEC amends Drawback Rates for Items under chapter 28 and Notification relating to Exchange Rates (See 'NT' What's New) PM hammers on 'D-3' to woo Canadian investors (See 'Mixed Buzz') ST - s.77 - Failure to appear before CE officer when summons issued - Penalty of Rs 200 per day is not in nature of mandatory - it is discretion of officer to reduce penalty depending upon nature of case: CESTAT (See 'Breaking News') Income Tax Returns - E-filing made mandatory for certain individuals (See 'DDT') I-T - Whether when assessee has multiple STPI units registered under single 'mother' licence, each STPI unit cannot be considered as separate undertaking for purpose of claiming sec 10A deduction - YES: HC (See 'Breaking News') Definitive anti-dumping duty imposed on Acetone (See 'Not' in What's New) Pilferage of Heroin from Malkhana - High Court confirms sentence awarded by Trial Court to officers of NCB and dismisses their Revision (See 'Breaking News') CBEC re-designates posts of Deputy Office Superintendent and Senior Tax Assistant as Executive Assistant (See 'Office Order Circular' in Cadre Review in Pitara) Whether assessee is bound by concession recorded in Tribunal's order assuming that concession was made: HC (See '2015-TIOL-926') CX - Exemption – Bulk drugs – Notification No. 8/95 - even if formulation is processed out of or containing one bulk product condition of Notification stands satisfied: SC (See 'DDT') Kozhikode Airport Customs seizes 6 kg gold worth Rs 1.75 Cr from pax coming from Gulf Sector India successfully test-fires Agni III Ballistic Missile CBEC notifies New Customs Exchange rates effective from 17th April (See 'What's New') DGFT restores facility of demand draft towards application fee or penalty Delhi CBI nabs DCIT for allegedly taking bribe of Rs 1.5 lakhs (See 'Mixed Buzz') Calicut Airport Customs seizes gold biscuits worth Rs 95 lakhs from pax coming from Abu Dhabi CBDT Chairperson wants field formations to wrap up PAN migration to new jurisdictions as per Cadre Review latest by April 25, 2015 CBEC needs 'resuscitation' - clinically! (See 'The Cob (Web)' Column) I-T - Foreign Bank A/c - Whether summon order passed on basis of criminal complaint is liable to be quashed, when Department had not disclosed vital information to Court which was received from assessee at time of filing complaint - YES: HC (See 'Breaking News') Income Tax Defaulters - Name and Shame-Version.2 (See 'DDT' Column) CX - Rule 7 of Valuation Rules - price prevailing at depot from where goods are finally sold shall apply - When facts came to notice of Department in Jan, 2001, subsequent to that it cannot be said that there was suppression: CESTAT (See 'Breaking News') Jurisprudentiol–Recent SC Judgements (See 'DDT')
 
Bookmark and Share
Condonation of delay - At toss to meet end of justice!

By Neha Pandit, Advocate

'INTEREST Republicae up sit finis litum' is the basis of the provisions of limitation in any law, but to uphold the "Principles of Natural Justice" and to reach the end of justice, the clause of "CONDONATION OF DELAY" (COD) has been incorporated in it.

The Authorities of justice can condone the delay to advance substantial justice. Therefore, delay can be condoned if sufficient cause is shown for not presenting appeal in time. Though delay up to last day of filing an appeal need not be explained, but, delay thereafter has to be explained.

Power of Commissioner (Appeals) to condone delay

Delay may be due to genuine reasons. Hence, Commissioner Appeals can condone delay up to 30 days. As per the provisions of law, Commissioner of Appeals has no powers to condone delay beyond 30 days.

Whether Tribunal can go beyond the law and condone such delay and remand the matter back to the Commissioner Appeals? To meet the end of justice, whether strict adherence of law in such matters is justifiable?

Initially, in Rayman Shoe Co. V. CCE, it was held that Commissioner cannot condone delay (beyond 30 days) and Tribunal cannot order Commissioner to condone delay and hear the case on merits or condone delay itself. Tribunal can't go into the merits of the case.

Bangalore Bench, in a number of cases, specially, in Shri Vishnu Process v. CCE, Bangalore (2005-TIOL-1506-CESTAT-BANG) held that Tribunal cannot exercise any power where statute has fixed the period for COD in a case where statute has not given any power to the Authority to condone the delay beyond the statutory period on sufficient cause being shown.

Similar view has been taken in Abhishek Auto Industries v. CC, Mumbai wherein it was held that Commissioner Appeals is not competent to entertain an appeal beyond the period on 90 days in view of specific provision contained in section 128 (1) of Customs Act, 1962.

Therefore, lawfully, if the statute provides for a period of limitation and further maximum period of limitation for which delay can be condoned, the Authority cannot extend the same.

If the legislature in its wisdom has fixed a maximum period for doing a particular thing, the Authority is not competent to prescribe the period beyond it.

Conflicting Decisions

Recently, a conflicting view has been taken by the Tribunal, Chennai, while deciding Raj and Co. v. CC, Chennai (2006-TIOL-1607-CESTAT-MAD) wherein the Tribunal condoned the delay of 256 days in filing Appeal before Commissioner Appeals and directed Ld. Commissioner Appeals to dispose off the Appeal too.

"In nutshell, Tribunal surpassed the provisions of law to meet the end of justice ".

Liberal views of COD while dealing with the Govt

Another irony could be viewed in similar matters, wherein the delay of the Government is condoned, and their cases are remanded back to the Commissioner Appeals for the adjudication.

In the case of Asst. Collector of CCE, Nagapattinam v. Marimuthu, the High Court of Madras, condoned delay of 131 days for a Govt Department on the ground that records were messed up with other papers in the office and the case was remanded.

The law of limitation, no doubt, is the same for a Private Citizen as for Governmental authorities. Government, like any other litigant must take responsibility for the Acts or omission of its officers. The provisions of law applicable to the government and private person are same and hence the expression sufficient cause cannot be construed too liberally because party in default is Government.

CONCLUSION

Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but see their remedy promptly.

"The technicalities of law cannot prevent court for doing substantial justice". Despite that, sometimes, the adoption of strict standard of proof (regarding reasons for the delay in filing appeal) tends to grave miscarriage of public justice.

Now the question, whether adherence to strict standards of law, that goes against justice should be followed?

(The author is a Bangalore-based Advocate)


 RECENT DISCUSSION(S) POST YOUR COMMENTS
   
 
Sub: delay condonation by commissioner Appeals

In the case of Delta Impex 2004/173/ELT/449 The Hon'ble High Court Delhi held that when maximum time limit is specified or a condonable period is prescribed delay within the condonable period alone can be condoned.similarly in the case of M.R. Tobacco the Hon'ble High Court Delhi once agian emphasised that Commissioner Appeals cannot condone delay beyond 30 days and this view was upheld by the Apex Court in 2007/213/ELT/A115. The decision of the Chennai Bench refered in the article was not for condonation of 256 days of delay but to ascertain the correct date of receipt of the order and then the Bench observed that there was no delay if the date of receipt was taken correctly.
SDR CHENNAI

Posted by Joint Chief Departmental Representative
 
 
 
Subscribe to TIOLTube
Download TIOL App
TIOL SEARCH
 
TIOL Subscriptions
 All-In-One Package
 Indirect Tax Package
 Income Tax Package
<< More Packages>>
 
   
             
Income Tax Customs Excise Service Tax FEMA DGFT SEZ Misc Pitara Budget
  • Notifications
  • Circulars
  • SC Cases
  • HC Cases
  • ITAT Cases
  • Instructions
  • Advance Ruling
  • Settlement
  • Other Case
  • Directorate of Income Tax (Systems)
  • Tariff Notfn
  • Non Tariff Notfn
  • Circulars
  • SC Cases
  • HC Cases
  • Cestat Cases
  • Settlement
  • Advance Ruling
  • Safeguard Duty Notfn
  • Anti-dumping Notfn
  • Drawback Cases
  • MISC Circulars
  • Tariff Notfn
  • Non Tariff Notfn
  • Circulars
  • SC Cases
  • HC Cases
  • Cestat Cases
  • Settlement
  • Advance Ruling
  • Excise Amendment
  • Clean Energy Cess Notfn
  • MISC Circulars
  • 37B Order
  • Commr.(A) Order
  • CESTAT
  • Notifications
  • Circulars
  • SC Cases
  • HC Cases
  • Cestat Cases
  • Miscellaneous
  • Advance Ruling
  • FAQ
  • Finance Act, 1994
  • Commr. (A) Orders
  • 37B Order
  • Removal of Difficulty
  • VCES
  • Accounting Head
  • Exchange Manual
  • Fema Notifications
  • SC Cases
  • HC Cases
  • RBI Notifications
  • Act
  • Rules
  • Regulations
  • Master Circulars
  • RBI Circulars
  • Depository Scheme
  • Press Note
  • Notifications
  • Circulars
  • Public Notices
  • Trade Notice
  • FTDR Amendment 2010
  • MISC
  • State Acts
  • Notifications
  • Instructions
  • Act 2005
  • Rules 2006
  • DGEP
  • State Policy
  • SC Cases
  • HC Cases
  • VAT Cases
  • Deputation Posts
  • Service News
  • The Insider
  • Transfer
  • Promotion
  • Recruitment Rules
  • Transfer Policy
  • Training Circulars
  • Service Cases
  • MISC
  • Pay Commission
  • Cadre Review
  • Budget Circular
  • Union Budgets
  • Economic Surveys
  • Budget Speeches
  • Finance Acts
  • Finance Bill
  • TRU - D. O. Letter
  • A Taxindiaonline Website. Copyright © 2014 Taxindiaonline.com Pvt.Ltd. All rights reserved. | Powered by 4th Dimension