TaxTMI 
TaxTMI 
2009 (8) TMI 139
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....hat the appeals have been preferred beyond the period of limitation. 3. The centripodal question that emerges for consideration is whether the High court can condone the delay and if the delay is not condonable, there is no justification for granting time to file an application for condonation of delay supported with affidavit. Hence, we proceed to deal with the controversy. In this context, it is apposite to scan the anatomy of certain provisions of the Act which relate to preferring of appeals before various forums. Chapter XX deals with appeals and revision. Section 249 prescribes for an appeal under the Act to be preferred within 30 days before the Commissioner (Appeals). Sub-section (3) provides for the Commissioner (Appeals) to admit the appeal after expiration of the said period if he is satisfied that the appellant has sufficient cause for not preferring the appeal within the stipulated time. Section 253 of the Act provides for an appeal to the Income-tax Appellate Tribunal (in short "the Tribunal"). Sub-section (3) of section 253 provides that an appeal under sub-section (1) or (2) of section 253 shall be filed within 60 days from the date from which the order is commun....
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....therwise provided in this Act, the provisions of the code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section." 5. On a scrutiny of the aforesaid provision, it is clear as noon day that no provision for condonation of delay is prescribed in section 260A which stands in contradistinction to sections 245 and 253. 6. The submission of Mr. Sanjay Lal, learned counsel appearing for the Revenue, is that there is no prohibition under section 260A of the Act which denudes the High Court from exercising the power to condone the delay and further in the absence of any express exclusion of provisions of the Limitation Act, the provision contained in sections 29(2) of the Limitation Act is attracted. It is urged by him that such an exclusion is not to be readily or lightly inferred. It is canvassed by Mr. Lal that when there is no clear indication of exclusion of applicability of sections 4 to 24 of the Limitation Act, the power of the High Court which is plenary in nature should not be curbed or curtailed by inference. The learned counsel has commended us to a Full Bench decision of the Bomb....
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....he Limitation Act and took note of the decisions rendered in M. V. Elisabeth v. Harwan Investment and Trading Pvt.Ltd. [1993] Supp 2 SCC 433, M. M. Thomas v. State of Kerala [2000] 1 SCC 666, Sharda Devi v. State of Bihar [2002] 3 SCC 705 and Union of India v. Popular Construction Co. [2001] 8 SCC 470 and eventually held as under (page 458 of 315 ITR): "In the earlier part of our order, we have adverted to Chapter VI-A of the Act which provides for appeals and revisions to various authorities. Though Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to the Appellate Tribunal. Also an additional period of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court under section 35G and reference application to the High Court under section 35H, Parliament has provided only 180 days and no further-period for filing an appeal and making reference to the High Court is mentioned in the Act. In this regard, it is useful to refer to a recent decision of this cou....
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....that the words 'expressly excluded' would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court....
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....tion (3) of section 116A of the Act not only provides a period of limitation for such an appeal but also the circumstances under which the delay can be excused, indicating thereby that the general provisions of the Limitation Act are excluded. There are two answers to this argument, Firstly, section 29(2(a)) of the Limitation Act speaks of express exclusion but there is no express exclusion in sub-section (3) of section 116A of the Act; secondly, the proviso from which an implied exclusion is sought to be drawn does not lead to any such necessary implication. The proviso has become necessary because, if the proviso was not enacted, section 29(2)(b) of the Limitation Act would have excluded the operation of section 5 of the Limitation Act with the result that even if a sufficient cause for the delay existed, the High Court would have been helpless to excuse the delay. I, therefore, hold the proviso to sub-section (3) of section 116A of the Act only restores the power denied to the court under section 29(2) (b) of the Limitation Act." (underlining is ours) 13. In K.Venkateswara Rao v. Bekkam Narasimha Reddi, AIR 1969 SC 872, it has been held as follows (page 877) : "The Indian ....
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....e prescribed period shall be dismissed are provided for in section 86 of the Act which gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of section 81, 82 or 117. It will be seen that section 81 is not the only section mentioned in section 86, and if the Limitation Act were to apply to an election petition under section 81 it should equally apply to sections 82 and 117 because under section 86 the High Court cannot say that by an application of section 5 of the Limitation Act, section 81 is complied with while no such benefit is available in dismissing an application for non-compliance with the provisions of sections 82 and 117 of the Act or alternatively if the provisions of the Limitation Act do not apply to section 82 and section 117 of the Act, it cannot be said that they apply to section 81. Again, section 6 of the Limitation Act which provides for the extension of the period of limitation till after the disability in the case of a person who is either a minor or insane or an idiot is inapplicable to an election petition. Similarly, sections 7 to 24 are in terms inapplicable to the proceedings under the ....
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....e earliest possible time so that both the election petition and the recrimination notice are tried at the same time. The recrimination notice is thus comparable to an election petition. When the Supreme Court in H. N. Yadav case has already held that section 5 of the Limitation Act does not apply to the filing of an election petition, it does not equally apply to the filing of the recrimination notice." (quoted from the placitum) 16. In Popular Construction Co. [2001] 8 SCC 470 their Lordships relied on the decision rendered in Hukumdev Yadav, AIR 1974 SC 480, expressed the view as under (page 475) : "13. Apart from the language, 'express exclusion' may follow from the scheme and object of the special or local law. 'Even in a case where the special law does not exclude the provisions of sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. (SCC p. 146, para 17) 14. Here the history and scheme of the 1996 Act support the conclusion that the time limit presc....
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....phrase was substituted by the phrase 'munsif having territorial jurisdiction' by the aforementioned amendment. Even after this amendment when an application is required to be made before the Munsif Court, no amendment was made to section 8 of the Act either to apply section 5 of the Limitation Act or its principles so as to enable a party to make an application after the expiry of the period of limitation prescribed on showing sufficient cause for not making an application within time. The Act is of 1955 and for all these years, no provision is made under section 8 of the Act providing for condonation of delay. Thus, when section 5 of the Limitation Act is not made applicable to the proceedings under section 8 of the Act unlike to the other proceedings under the Act, as already stated above, it is appropriate to construe that the period of limitation prescribed under section 8 of the Act specifically and expressly governs an application to be made under the said section and not the period prescribed under the said article 137 of the Limitation Act." 18. In Fairgrowth Investment Ltd. v. Custodian [2004] 122Comp Cas 683; [2004] 11 SCC 472, their Lordships were dealing with the ....
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.... Act and such provision is not made to an application to be made under section 8 of the Act, it obviously and necessarily follows that the Legislature consciously excluded the application of section 5 of the Limitation Act'." (emphasis supplied) 19. At this juncture, we may note with profit the decision rendered in Rao Ravulu Subba Rao v. CIT [1956] 30 ITR 163 (SC) ; AIR 1956 SC 64, wherein their Lordships have held as follows (page 173) : "To sum up, the Indian Income-tax Act is a self-contained code exhaustive of the matters dealt with therein and its provisions show an intention to depart from the common rule, qui facit per alium facit per se. Its intention again is that a firm should be given benefit of section 23(5)(a), only if it is registered under section 26A in accordance with the conditions laid down in that section and the rules framed there under. And as those rules require the application to be signed by the partner in person, the signature by an agent on his behalf is invalid." (underlining is ours) 20. We have referred to the said decision to hold that even after coming into force of the 1961 Act, it has to be construed as a self-contained code and hence, pa....