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Punjab High Court · body

2010 DIGILAW 472 (PNJ)

Commissioner Of Income Tax v. Gurbachan Singh

2010-01-20

JITENDRA CHAUHAN, M.M.KUMAR

body2010
Judgment M.M.KUMAR, J. 1. This order shall dispose of ITA Nos.686, 687 and 669 of 2009, which have been filed under Sec.260-A of the Income-tax Act, against the orders passed by the Income tax Appellate Tribunal, delhi and Chandigarh Benches (for brevity, the Tribunal ). The only question of law which arises for determination of this Court is as under: "whether the delay in filing of the appeal beyond the period of 120 days prescribed by section 260-A (2) (a) of the Income-tax Act, 1961, could be condoned by entertaining an application under Sec.5 of the Limitation Act, 1963 ?" 2. In all the aforementioned appeals there is an application invoking the provisions of Sec.5 of the Limitation Act, 1963 (for brevity, the limitation Act), seeking condonation of delay in filing the appeal. 3. The aforesaid question is no longer res integra as Honble the Supreme Court in the case of Commissioner of Customs and Central Excise V/s. Hongo India (P)Ltd. , (2009) 5 SCC 791, while interpreting the provisions of the Central Excise act, 1944 (for brevity, the Excise Act) has laid down that it is a complete code by itself which alone is to govern the matters provided by that Act. It has further been held that in the presence of special law providing for limitation with regard to filing of appeal, the Court could examine the extent of exclusion of Limitation Act by such special law. On examination of the language used in Sections 35, 35-B, 35-EE, 35-G and 35-H of the Excise Act, it has been concluded in paras 32 and 33 that the provisions of Limitation Act were not to apply. The view expressed by Honble the Supreme Court in the aforesaid paras reads thus:- " 32. As pointed out earlier, the language used in sections 35, 35b, 35ee, 35g and 35h makes the position clear that an a ppeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appel- late authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In other words, the language used in other provisions makes the position clear that the legislature intended the appel- late authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Sec.5 of the Limitation Act. The high Court was, therefore, justified in hold- ing that there was no power to condone the delay after expiry of the prescribed period of 180 days.33. Even otherwise, for filing an appeal to the Commis-sioner, and to the Appellate Tribunal as well as revision to the Central government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and ref- erence to the High Court larger period of 180 days has been pro- vided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision. " 4. When we examine the provisions of the Income-tax Act, 1961 (for brevity, the Act), the position is no different than the one prevailing un- der the excise Act. In that regard it would be profitable to refer to the un- numbered second proviso of Sec.143 (1), Sec.249 (3) and Sec.260a (2) (a) of the act, which reads thus: Second un-numbered proviso of Sec.143 (1) of the Act "provided further that no intimation under this sub-section shall be sent after the expiry of one year from the end of the financial year in which the return is made. " Sec.249 (3) " The Commissioner (Appeals) may admit an appeal after the expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting it within that period. " Sec.249 (3) " The Commissioner (Appeals) may admit an appeal after the expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting it within that period. " Sec.260a (2) (a) "appeal to High Court.260a (2) The Chief Commissioner or the Commis- sioner or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be- (a)filed within one hundred and twenty days from the date on which the order appealed against his re- ceived by the assessee or the Chief Commissioner or commissioner;" 5. A perusal of above quoted provisions would show that wherever the legislature desires to provide for condonation of delay, a specific provi- sion has been made in the Act and, therefore, if no such provision has been made, then no application under Sec.5 of the Limitation Act could be filed as the act itself is a complete code like Excise Act, which has been con- sidered by their Lordships of Honble the Supreme Court in Hongo India Private Limited (supra ). The reasoning adopted by Honble the Supreme Court in the case of hongo India Private Limited (supra) is fully applica-ble to the question raised in the present appeals. Therefore, we are of the view that the application (s) seeking condonation of delay filed under Sec.5 of the Limitation Act cannot be accepted. 6. For the reasons aforementioned, the application (s) filed under Sec.5 of the Limitation Act seeking condonation of delay in filing the ap- peals are dismissed. Consequently, the appeals also fail and are dismissed being time barred. A photocopy of this order be placed on the files of connected ap-peals.