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TMI Blog2018 (4) TMI 1498X X X X Extracts X X X X X X X X Extracts X X X X ..... Issue a writ of certiorari and direction in the nature of certiorari quashing the order-in-appeal passed by the Respondent No. 2 vide No. 478/2015, dated 26-11-2015 herein marked as Annexure B; (c) Issue a writ of mandamus and direct the Respondent No. 2 to adjudicate the grounds of appeal filed by the petitioner by holding that there is no delay in filing the appeal as per the provisions of Section 85(3A) of the Finance Act, 1994; (d) And pass such other orders as this Hon'ble Court deems fit and proper in the interest of justice and equity." 2. Learned counsel appearing for the Commissioner of Appeals submitted that the Commissioner has no power to cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no delay in filing the appeal from the date of receipt of the certified copy of the order-in-original, held that the Appeal is not admitted and dismissed the appeal on the ground that there was a delay of 32 months in filing the appeal and that the said Authority is not vested with the power to condone the delay beyond a period of 90 days. 4. However, he submitted that since the impugned adjudication order suffers from illegality, the delay deserves to be condoned by this Court in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India and the Respondent-Commissioner of Appeals may be directed to decide the appeal on merits. He relied upon a Division Bench decision of this Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the Delhi High Court, there was a strong case on merits on the part of the petitioner to be considered by the taxing authority. Unfortunately the decision of the Delhi High Court though was specifically brought to the notice of the original authority in the reply to the show cause notice, in the impugned order of the original authority, there is no reference whatsoever. Under these circumstances, we find that the case may fall in the exceptional category for exercise of the power under Article 226 of the Constitution. xxx xxx xxx xxx 15. After the aforesaid condition is complied with, the matter shall stand restored on the file of the Commissioner (Appeals) with a further direction that he shall consider the appeal on merits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court is of the opinion that discretion ought to have been given to the Appellate Authorities under the Act to condone such delays, if caused by sufficient reason. Be that as it may. 9. In the present case, the delay of 32 months as stated in the impugned order in filing the appeal is condoned and the appeal is restored to the file of the Respondent-Commissioner of Appeals, with a direction to the said Authority to decide the appeal on merits in accordance with law, subject to his satisfaction of the required pre-deposit conditions for maintaining such appeal having been satisfied by the petitioner-Firm. 10. The petitioner-assessee Firm may appear before the said Authority in the first instance on 8-1-2018 and thereafter the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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