TaxTMI 
TaxTMI 
2010 (3) TMI 752
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....he sections 35G and 35H of the Central Excise Act, 1944 (hereinafter Act 1944) empowering the High Court to condone delay expressly. 2. Basically the point is whether the provision of section 260A of the Act 1961 has expressly or by necessary implication excluded the provisions of sections 4 to 24 of the Limitation Act, 1963, as contemplated in section 29 sub-section (2) of the Limitation Act, 1963 (hereinafter referred to as Act 1963) or not, having regard to the ratio decided in the said pronouncement of the Supreme Court and the impact of the amendment after the said decision as above. 3. My learned brother has quoted the relevant portion of the said judgment of the Supreme Court, I need not repeat it. The ratio of the said judgment is that exclusion of sections 4 to 24 of the Act 1963 either expressly or by necessary implication has to be inferred not with reference to section 29(2) of the Act 1963 but the relevant provision of the special statute. Several High Courts following the above ratio held that section 260A of the Act 1961 has excluded the application of section 5 of the Act 1963. 4. On a careful study of the said judgment it appears to me that their Lordships were ....
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....nce following respectfully the ratio of the said Hongo India (P.) Ltd.'s case (supra), I examine with reference to the provisions of section 260A of the 1961 Act whether the provision of sections 4 to 24 of the 1963 Act have been made non-applicable or not by this section. My learned brother has noted while following the aforesaid case Chhattisgarh High Court, Madhya Pradesh High Court, Full Bench of the Allahabad High Court, Gauhati High Court and also Bombay High Court have held applying the doctrine of pari materia power of condonation of delay is not conferred on High Court expressly or by necessary implication under section 260A of the 1961 Act. In view of the legislative amendment of sections 35G and 35H of the 1944 Act with retrospective effect conferring upon High Court express power to condone the delay the decision of the Supreme Court in Hongo India (P.) Ltd.'s case (supra) is no longer applicable. Of course our High Court in the case of CIT v. Anandilal Poddar & Sons Ltd. [2005] 279 ITR 104/148 Taxman 513 had held earlier that by virtue of section 29(2) of the 1963 Act the provisions of sections 4 to 24 has not been excluded by the Legislature in section 260A of the Act....
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....f power of condonation. I feel that when in section 260A under sub-section (7) the Legislature intended to make application of the provision of the Civil Procedure Code relating to appeals to the High Court and thereby amended provision of Order 41, rule 3A has been made applicable automatically the Legislature had its mind to empower court to condone delay. It is true while reading Order 41 rule 3A it can easily be gathered such a provision is a procedural nature and the rule by itself does not empower the court to condone delay which is a substantive provision of law. Such power has to be derived from the substantive provision of the statute namely either from the Limitation Act or under the provision of Special Act/Rules itself. None of the judgments cited before us does appear to have answered the question whether adopting the provisions of the Civil Procedure Code relating to appeal to High Court including rule 3A of Order 41 thereof the intention of the Legislature is to exclude or include the provisions of sections 4 to 24 of the Limitation Act or not. I think, as the court endeavours to understand the mind of the Legislature from a statute the exercise essentially is guess ....
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....le circumstance. I feel in view of my above discussion a case of clear necessity emerges for inferring casus omissus of the Legislature, not expressly empowering the court to condone delay. In the case of Padmasundara Rao v. State of Tamil Nadu [2002] 255 ITR 147 (SC) in paragraph 15 clear guideline is provided as to what extent court can supply casus omissus (page 155) : "15. Two principles of construction-one relating to casus omissus and the other in regard to reading the statute as a whole-appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous result....
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....isely stating therein the substantial question of law involved. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which- (a) has not been determined by the Appellate Tribunal ; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1). (7) Save as otherwise provided in this Act, the provision....
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....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 . . . Though an argument was raised based on section 29 of the Limitation Act, even assuming that section 29(2) would be attracted, what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to the High Court. It was contended before us 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 that the ....
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....9] 319 ITR 368 and Asstt. CIT v. Shubhash Traders/Tesla Transformers (P.) Ltd. [2009] 318 ITR 402 (MP), a Full Bench decision of the Allahabad High Court in CIT v. Mohd. Farooq/ New Cawnpore Flour Mills (P.) Ltd. and Janpad Thok Kendriya Upbhokta Sahkari Bhandar Ltd. v. CIT [2009] 317 ITR 305/184 Taxman 191 (All.), of the Bombay High Court made on 8th July, 2009 by its Division Bench in CIT v. Grasim Industries Ltd. [2009] 319 ITR 154. 16. I would have had no option but to follow the above decisions. I felt I was bound by the above Supreme Court decision. 17. But it has been brought to our notice that by the Finance Act of 2009 the Central Excise Act, 1944 and the Customs Act have been amended to the following effect : "87. In section 130 of the Customs Act, after sub-section (2), the following sub-section shall be inserted and shall be deemed to have been inserted with effect from the 1st day of July, 2003, namely :- '(2A) The High Court may admit an appeal after the expiry of the period of one hundred and eighty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period.' 88. In section 130....
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....nion an additional external aid to construction of section 260A of the Income-tax Act which was not before the Supreme Court. Assistance of later statutes is an aid to construction of earlier statutes, as is recognized in Syn 4 of Chap. 4 of Justice G. P. Singh's treatise on the Principles of Statutory Interpretation, Eighth Edition 2001 from pages 249 to 253. 22. One passage from the said treatise can be conveniently reproduced hereunder : "But when an earlier Act is truly ambiguous a later Act may in certain circumstances serve as a parliamentary exposition of the former. The rule of construction applicable in such cases can be best stated in the words of Lord Sterndale : 'I think, it is clearly established-that subsequent legislation on the same subject may be looked to in order to see what is the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that subsequent legislation, if it proceeds upon an erroneous construction of previous legislation, cannot alter that previous legislation, but if there be any ambiguity in the earlier legislation then the subsequent legislation may fix the proper interpretation which is to be put upo....