TMI Blog2015 (6) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... authority, therefore, dismissed the appeal. The right to file an appeal is conferred by a statute and must, therefore, be availed along with all its impediments. Section 85(3) of the Act allows an assessee to file an appeal within 90 days. The proviso to Section 85(3) of the Act empowers the appellate authority to condone delay but not beyond three months. We are unable to discern any legal flaw i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The petitioner prays that proviso to Section 85(3) of the Finance Act, 1994 (hereinafter referred to as the Act ), may be declared ultra vires or may be read down. The petitioner also prays for setting aside order dated 10-11-2010, imposing penalty and order dated 1-3-2012 passed in appeal, whereby the petitioner's appeal was dismissed for having been filed beyond the condonable period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for the respondents submits that the right to file an appeal emanates from a statute. The legislature has, in its wisdom, confined the power to condone delay to a period of three months beyond the period prescribed for filing an appeal and, therefore, power under Article 226 of the Constitution cannot be exercised to condone delay. Counsel for the respondents relies upon a Full Bench judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw in the proviso to Section 85(3) of the Act, that would enable us to hold that the proviso impedes the rights of the petitioner to file an appeal or is in any manner in excess of legislature power or should be read down. 7. As regards the petitioner's plea that delay may be condoned by exercising power under Article 226 of the Constitution or the assessment order may be quashed suffice is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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