TMI Blog2009 (12) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... to allow further time when they know very well the law which permits to cure defect. Therefore, we dismiss the appeal with an impression that Revenue has made very casual approach – held that - A perusal of the file shows that the Revenue has proceeded on the premises that on 2.2.2009 it has been given time to cure the defect by 9.2.2009 as the next date fixed is 18.2.2009 . The aforesaid premise is factually incorrect as the appeals were dismissed vide order dated 2.2.2009 - In any case once the fundamental element of formation of opinion of filing the appeal is missing then no appeal is deemed to be instituted in the eyes of law - Ordinarily, we do not non suit the Revenue for a procedural lapse but this case is of such a nature that lap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure the defect when there is law declared by Hon'ble High Court of Karnataka in the aforesaid case in the year 2007. Such an attitude of Revenue is not appreciable to allow further time when they know very well the law which permits to cure defect. Therefore, we dismiss the appeal with an impression that Revenue has made very casual approach. Accordingly, both the appeals are dismissed." In order to satisfy ourselves we have sent for the original record which has been produced before us. All that the file reveals is that a note was put up by the Assistant Commissioner suggesting that the order of Commissioner (Appeals) may please be appealed against. Thereafter the note observed that the file may be marked to the Commissioner Rohtak for d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them to file an appeal before the Tribunal. Therefore, we find that the appeal has not been instituted as per the provisions of sub section of Section 129 A of the Act. The Revenue has also pleaded that after the dismissal of the appeal vide order dated 2.2.2009 an order of authorisation has been passed subsequently on 4/6/2.2.009 which may be considered as ex post facto authorisation. Firstly, there is no ground raised in the grounds of appeal which has been filed on 6.7.2009. Moreover, after the dismissal of appeal by the Tribunal the defect could not have been removed. A perusal of the file shows that the Revenue has proceeded on the premises that on 2.2.2009 it has been given time to cure the defect by 9.2.2009 as the next date fixed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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