Case Law Details
Reliance in this connection can be placed on the decision of Hon’ble P&H HC in case of Heritage Auto (P.) Ltd. Reported in [2015] 58 taxmann.com 33 (Punjab & Haryana) wherein the appellant pleaded before the Hon’ble Court to strike down the proviso to Section 85(3) of Finance Act, 1994 as it provides that the appellate authority shall not condone the delay in filing the appeal by more than three months. The appellant further stated that the afore-said provision is an illegal impediment on the right to file an appeal.
The respondents have submitted that the right to file an appeal emanates from the statute itself and the legislature in its wisdom has deliberately confined the said period to condone the delay and thus the court cannot exercise its powers under Article 226 of the constitution to strike down the same.
The Hon’ble Court after hearing the submissions made in this regard stated that
“We are unable to discern any legal flaw 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.”
Thus the appeal was dismissed in favour of the revenue.
Author Aditya Singhania & Nischal Agarwal
IMPROMPTU
If were to be considered from all angles, and with the objective of profound public interests, the view the HC has taken has to be commended not only as the right view, but as the ONE AND ONLY view judiciary could have been expected to take; especially so, should a couple of crucial aspects be kept in sharp focus:
1. Strictly viewed, right of appeal being a special feature, rather creature of the Act, an appeal is required, and duty bound, be it taxpayer or Revenue, need to be lodged within the prescribed time limit., not beyond. And, con donation of a delay, is intended to be prayed for, and allowed, provided “sufficient cause” is pleaded and proved to the satisfaction of the appellate authority, not excluding courts. In short, con-donation of a delay is permissible, only in exceptional cases and extraordinary circumstances; not as a matter of routine or impulsively.
2. For con donation, the outermost time limit prescribed is a MUST. With unbridled and uncontrolled power of discretion, if vested, that has the inherent danger of being exercised at freewill/ according to the whims and fancy of the authority; so much so, exercise of the power, if permitted on subjective, as opposed to objective and non-judgmental, reasons, con donation might become THE RULE, not an exception on a case to case basis.
Taking a rigid view, it is fervently hoped that, the controversy, as is expected to be, is set to rest NOW AND HERE; with no scope left open for any attempt at further procrastination.