TMI Blog1993 (2) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... aggrieved has preferred this revision. The short question which falls for determination is whether on the facts obtaining on the record, the order dismissing the appeal as barred by time could be sustained. Section 9 of the Act, inter alia, provides that any dealer aggrieved by an order made by the assessing authority may within thirty days from the date of service of a copy of the order, appeal to such an authority as may be prescribed. Sub-section (6) of section 9 of the Act states that section 5 of the Limitation Act, 1963, shall apply to appeals or applications made under that section. The reference to section 5 of the Limitation Act would show that it provides for extension of prescribed period in certain cases and says, inter al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be made within thirty days of the ex parte assessment order, the limitation being the same within which the appeal against the assessment order could be preferred. It may be noticed that under the Act against an ex parte assessment two remedies are provided to an aggrieved assessee, one to approach the assessing authority itself to set aside the ex parte assessment on the ground that no notice for hearing was received or the assessee was prevented by sufficient cause from appearing on the date fixed. The other remedy is to appeal against the assessment. The two remedies available to an assessee against an ex parte assessment order are independent of each other. Availing of one remedy does not bar to have recourse to the other remedy. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction or illegal exercise of it. In such a situation the decision of the authority is liable to be interfered with. In other words the power of the appellate authority to condone the delay, though discretionary, must either way show application of mind that discretion was exercised fairly and equitably. The expression "sufficient cause" by now has been the subject-matter of consideration in several cases by the Supreme Court as well as by other courts. The judicial opinion is that the court should take a pragmatic view in the matter of condonation of delay. The inclination must be towards excusing delay rather than scuttling proceedings. The courts have held that legislation is adequately elastic to enable a court to apply the law in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee was to the effect that the assessee was advised complete bed rest and was not allowed to move. There is no finding of the Sales Tax Tribunal that the ailment of the assessee was not such which could have prevented him from filing the appeal earlier than on the date actually filed. In absence of such a finding the order of the Sales Tax Tribunal refusing to excuse the delay, cannot be upheld, only on the ground that in point of time the application under section 30 of the Act was filed earlier inasmuch as that did not disqualify the assessee to explain the further delay on the strength of his ailment. The assertion of the assessee that the application was filed by the counsel of his own accord, has also not been disputed. It is per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to benefit by resorting to delay. In fact, he runs a serious risk. Further when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for other side cannot claim to have vested right in an injustice being done because of non-deliberate delay. It was ruled that 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 the delay is condoned, the highest that can happen is that a case would be decided on merits after hearing the parties. There is no presumption that the delay is occasioned deliberately on account of culpable negligence or on account of mala fades ..... X X X X Extracts X X X X X X X X Extracts X X X X
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