ORDER 1. This order will dispose of all the three appeals filed by the appellant against the order of the Dy. Commissioner, Commercial Taxes (Appeals), Jammu for the accounting years 2001-02, 2002-03 and 2003-04. 2. To put in brief the facts are that the appellant for the accounting year 2001-02 had filed his returns for all the quarters and has also deposited the tax due on the said returns. The Ld. Assessing Authority has passed order under section 7(10) of the J&K GST Act, 1962 where by he increased the sales of the appellant on estimate basis and further demanded interest and imposed penalty. But no demand notice was served upon the appellant. The appellant came to know regarding passing of the assessment order only in May, 2008 when notice for 2001-02 was received from the recovery agency and the appellant inspected the file. Thereafter an application for copy of the assessment order was filed on 13-05-2008 and on the receipt of certified copy of assessment order on 15-05-08 before the Ld. Deputy Commissioner, Sales Tax (Appeals) Jammu (hereinafter to be referred as "the Appellate Authority"). The Ld. Appellate Authority issued a notice informing the appellant that the appeal is filed out of time and 50% of the penalty has not been deposited. The appellants counsel appeared before the Ld. Appellate Authority and submitted that only 5% penalty requires to be deposited and the said amount stands deposited on 21-05-2008. But the Ld. Appellate Authority was not agreeable to the deposit of 5% of the penalty and insisted that 50% of the penalty be deposited. 3. The appellant filed an application under section 8 of the J&K GST Act, 1962 before the Ld. Commissioner of Commercial Taxes for extending the date of payment of penalty and the Ld. Commissioner vide order dated 28-03-2009 extended the date of payment of the demand for a period of one month. Copy of the Commissioner's order is enclosed. 4. For late filing of appeal reference was made to the facts stated in ground No. (3) of the memo of appeal and it was explained that no demand notice was served upon the appellant, hence the limitation may please be counted not from the date of passing of the assessment order. The case was discussed many a times and finally the Ld. Appellate Authority adjourned the case to 30-05-2011. The case was discussed many a times and finally the Ld. Appellate Authority adjourned the case to 30-05-2011. On 30-05-2011 when the appellants counsel Shri Suraj Wazir went to the office of the Ld. Appellate Authority, he found that the case is not included in the cause list i.e. in the list of cases fixed for 30-05-2011. The counsel therefore, returned. 5. On 29-07-2013 the appellant filed an application before the Ld Appellate Authority for fixation of his case and the stay application. Inspite of best efforts the official staff of the Appellate Authority could not find the appeal file hence the matter remained pending. It was only on 11-09-2013 that the Ld. Appellate Authority informed the counsel of the appellant that appeal file has been searched out. The appellant immediately filed an application for inspection of the file on 12-09-2013. On inspection the appellant counsel found that on 30-05-2011 it is recorded on the record sheet of the appeal file that none has attended on 30-05-2011 and that the order shall follow. Then on 31-0-5-2011 there is nothing but that of the order passed and announced. The appellant immediately filed application for certified copy of the Appellate Order and on receiving the appellate order the appeal is being filed. 6. The appellant alongwith appeal has filed application for Condonation of delay praying therein that the order passed by the Appellate Authority on 30-05-2011 is in exparte as the case was not listed on 30-05-2011 has enclosed the certified copy of the cause list issued by the Appellate Authority for said date. While going through the contents of application and perusing the record available the appellant has succeeded to establish strong ground for Condonation of delay, hence the delay is condoned as there is no presumption delay is occasional, deliberate or on account of malafides.Litigant does not stand to benefit by restoring the delay infact he runs a serious risk as held by the Hon'ble Supreme Court in case of Collector land Acquisition V/s Mst Katisi. 7. Heard the Counsel for the parties. Perused the file, also perused the record called for. While going through the impugned order which is cryptic and passed in hot haste. The Appellate Authority has dismissed the appeal in limini filed by the appellant on the ground that appellant has failed to explain the delay in late filing the appeal. 7. Heard the Counsel for the parties. Perused the file, also perused the record called for. While going through the impugned order which is cryptic and passed in hot haste. The Appellate Authority has dismissed the appeal in limini filed by the appellant on the ground that appellant has failed to explain the delay in late filing the appeal. The Appellate Authority has mentioned in his order that opportunity to explain the reasons for failure to comply with the said Statutory requirement and counsel for the appellant availed numerous opportunities but fail to do the needful and ultimately the case was fixed for 30-05-2011 but nobody appeared on due date i.e. 30-05-2011. 8. The Ld. Counsel for the appellant has stressed only one point that on 30-05-2011 the case was not fixed though he appeared. The record was called for and perused the same. Cause List register called from the Appellate Authority. The photocopy of same has been retained and shall remain part of the file. It nowhere reveals that on 30-05-2011 the case titled above was everlisted. The cause list register maintained by the Appellate Authority was perused alongwith cause list of 30-05-2011. The above titled case was not listed on 30-05-2011. In the order impugned the case has been shown listed on 30-05-2011 and disposed of on 31-05-2011 whereas on 31-05-2011 the case has not been listed. The record called for has been perused and the register maintaining the cause list is silent regarding the listing of the above titled case which clearly draws adverse interference in favour of the department as order passed by the Appellate Authority was on the back of appellants knowledge. 9. For the reasons stated herein above, the order impugned which is assailed in this appeal, appears to be self-contradictory to the sense that the order of listing and date of judgment is not borne from the record. Therefore the order passed by the Appellate Authority is set aside and the appeal is allowed and the Ld. Appellate Authority is directed to restore the appeal of the appellant and decide the same on merits and in accordance with law. The appeal is accordingly disposed of and shall be consigned to records.