A two-judge bench of the Bombay High Court has held that the delay in filing of the appeal before the Tribunal due to non-communication of the same to the Trustee would constitute ‘sufficient cause’ to condone the delay.
The appellant, a Charitable Trust challenged an order demanding service tax for operating commercial training or coaching centre before the first appellate authority. However, the appeal was dismissed. The appellant contended before the Court that the order in appeal was required to be personally served upon the appellant’s Trustee in order to constitute valid communication of the order.
According to the appellants, the plea of non-communication of the impugned order to the trustee cannot be considered as sufficient cause for delay in filing the appeal before the Appellate Tribunal. However, the Tribunal dismissed the appeal on the ground of delay of 102 days.
The bench comprising Justice M S Sanklecha and Justice M S Sonak observed that the contention that the order in appeal was required to be personally served upon the appellant’s Trustee in order to constitute valid communication of the order in an appeal cannot be accepted.
“The record indicates that the order in the appeal was duly served at the office of the appellant on 20th July 2017. Even the appellant admits that the order in the appeal was so received by some staff member of the appellant Trust. Accordingly, it cannot be said that there was no communication of the order in appeal to the appellant, merely because such order, may not have been personally served upon the Trustees of the appellant. The service of the order in the appeal at the appellant’s registered address, in the facts and circumstances of the present case, constitutes valid communication for the purpose of the period of limitation for filing of an appeal to operate.”
While condoning the delay period, the bench added that “Despite the aforesaid, we note that the delay in institution of appeal was of only 102 days. The record indicates and it is really not disputed that the appellant is a Charitable Trust. The explanation that the order in the appeal may have been received by some staff member who did not bother to place the same before the Trustees of the appellant can neither be said to be implausible nor does the same smack of any mala fides. The appellant has really not gained anything by instituting the appeal beyond the prescribed period of limitation. Therefore, it cannot be said that no ‘sufficient cause’ was made out to explain the delay of 102 days in the institution of appeal.”
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