A division bench of the Chhattisgarh High Court has held that the demise of the mother cannot be said to be a reason for condoning the delay of 259 days in filing an appeal since the assessee was carrying on business these days.
The appellants are supplying bed-rolls and newspapers as required by the award of the contract by M/s. Indian Railways and IRCTC subject to the terms and conditions as agreed upon. The department held that the appellants are liable to pay service tax on the supply of newspapers under Section 65(105)(zzt) read with Section 67(76a) and Section 65(24) as ‘outdoor catering service’. The department further proposed to tax the while supply of bed-rolls under the category of ‘business support service’.
The order passed by the department was challenged before the first appellate authority with a delay of 259 days. The appeal was dismissed on the ground of limitation.
Aggrieved by the dismissal of appeal, the assessee approached the High Court wherein the Single Judge dismissed the petition with a specific note that the reason for the delay of 253 days in filing the appeal offered by the writ petitioner was that after passing of the assessment order, the Appellant/Petitioner was engaged in personal tragedy as his daughter was facing marital dispute and hence, the appeal could not be filed within the time.
The learned Single Judge also observed that the so-called extraordinary situation pressed by the Petitioner was not of such nature which had paralyzed the Petitioner’s business or his life and that admittedly, he was carrying on his business during the relevant period.
On further appeal, the division bench observed that there was no pressing emergency which did not permit the Petitioner to prefer an appeal before the Commissioner (Appeals) on time.
“The reasoning given by the learned Single Judge is not liable to be interdicted as unsustainable under any circumstances,” the bench said.
The appellant further contended that he was otherwise engaged in connection with the demise of his mother.
Rejecting the argument, the division bench held that “even if it is acceptable, it cannot cover the inordinate delay of 253 days during which period, the Appellant did not find it necessary to compromise with the business activities and other commercial transactions. It has to be reasonably presumed that this plea under this head was never argued before the learned Single Judge; which otherwise would have found a place in the judgment, dealing with the same in an appropriate manner. If the Appellant has got a case that it was argued but omitted to be considered, the redressal of the grievance could only be by way of filing a review petition and nothing else. But since we are holding that the inordinate delay of 253 days cannot be covered by the said incidence/incident, during which period the Appellant was admittedly carrying on the commercial activities/business, it does not constitute any ‘extraordinary circumstance’ to have interfered by this Court, invoking the discretionary power under Article 226 of the Constitution of India.”Subscribe Taxscan AdFree to view the Judgment