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2019 (7) TMI 939 - HC - Income TaxCondonation of delay - delay of 497 days in filing the miscellaneous petition - reasons assigned by the petitioner for not appearing before the Tribunal due to some mis-communication between the petitioner company and its Chartered Accountant - HELD THAT:- Undisputably, the miscellaneous petition was filed with the delay of 497 days before the Tribunal and the Tribunal has no power to condone the delay beyond 6 months, if so, the petitioner approaching this Court under Articles 226 and 227 cannot be held to be unjustifiable. The Division Bench of this Court in identical circumstances in the case of M/S.PRACTICE STRATEGIC COMMUNICATIONS INDIA PRIVATE LIMITED vs. THE COMMISSIONER OF SERVICE TAX, BANGALORE [2017 (1) TMI 659 - KARNATAKA HIGH COURT] has held that remedy available to the assessee to seek for condonation of delay beyond the statutory period of limitation is only under Article 226 and 227 of Constitution of India. In the circumstances, the writ petition deserves to be entertained. As regards the reasons assigned by the petitioner to condone the delay of 497 days may be unsatisfactory, but the same requires to be considered in the light of disposal of the original appeal by the Tribunal for non prosecution. It is well settled law that Tribunal is bound to dispose of the matter on merits even in the absence of the appearance of the assessee or its counsel. It is thus clear that the dismissal of the appeal for non prosecution has resulted in failure of justice, which necessarily requires to be rectified. Hence, considering the same, the delay of 497 days in filing the miscellaneous petition has to be condoned subject to imposing costs of ₹ 5,000/- to the petitioner.
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