TaxTMI 
TaxTMI 
2007 (1) TMI 112
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....r section 260A of the Income-tax Act, 1961. Since the appeal suffered from a delay of 11 days, an application was made by the Revenue for the condonation of delay. The assessee raised the objection that section 5 of the Limitation Act, 1963, cannot be invoked by the Revenue as it is excluded by necessary implication. 5. Mr. S. K. Kakodkar, senior counsel for the assessee forcefully submitted, as he always does, that the Income-tax Act, 1961, is a complete code in itself ; it provides for all aspects relating to levy and recovery of Income-tax, the procedure therefor, remedies including appeals and revisions and penalties and prosecution. Section 260A that provides for an appeal to the High Court on substantial questions of law is exhaustive in all respects including the period of limitation and the said provision also being a complete code in itself relating to the remedy of appeal to the High Court, the application of section 5 of the Limitation Act is excluded by necessary implication. The submission of senior counsel is that section 260A clearly provides in compulsive form that the appeal shall be filed before the High Court within 120 days and the longer limitation having al....
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.... does not apply to appeals under section 260A. Mr. S. R. Rivonkar also submitted that the appeals filed under sections 249, 253 and applications under section 256(1) of the Income-tax Act lay before the authorities/tribunals constituted under the Income-tax Act and since these authorities and tribunals are not courts, specific provisions have been made therein authorising such authorities/tribunals to condone the delay while filing appeals/applications but no such provision has been made under sections 256(2) and 260A for condoning the delay in filing the applications/ appeals, to the High Court, as section 29(2) of the Limitation Act is attracted and, therefore, the Legislature did not feel it necessary to expressly provide for condonation of delay by the High Court in the appeals under section 260A or the erstwhile provision of section 256(1). He relied upon the following decisions in support of his submissions : (i) Commissioner of Customs (Import) v. S. C. Gupta (Customs Application No.1 of 2001, decided on July 27, 2006), (ii) CIT v. Anandilal Poddar and Sons Ltd. [2005] 279 ITR 104 (Cal), (iii) Prem Chand Bansal and Sons v. ITO [1999] 237 ITR 65 (Delhi), (iv) CIT v. Orissa Co....
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....t is important is that the question of exclusion of the provision of the Limitation Act must be separately considered with reference to different provisions of the Special Act and not in connection with the provisions of a Special Act as a whole. Seen thus, we find that section 260A itself provides that the provisions of the Civil Procedure Code relating to appeals, as far as possible, are applicable to the appeals under section 260A. It would mean that section 260A is not exhaustive of all the facets, aspects and matters with regard to the appeals under section 260A. We have to look beyond section 260A relating to appeals filed thereunder with regard to various aspects as provided in the Code of Civil Procedure relating to appeals. How can it be said then that section 260A forms a code complete in itself and is exhaustive of the matters relating to the appeals filed under the said provision. Mr. S. K. Kakodkar, senior counsel for the assessee contended that merely because the provision has been made in sub-section (7) of section 260A that the provisions of the Civil Procedure Code relating to appeals are made applicable to appeals under section 260A (as far as possible) that would....
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.... 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 subsection (1). (7) Save as otherwise 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." 13. That the Legislature has used the words "shall be filed" in sub-section (2) means that the limitation for filing the appeal is as provided therein but that does not make section 29(2) of the Limitation Act, 1963, inapplicable. The High Court being the superior court, the power to condone the delay in filing the appeal must be read to be existent, more so by virtue of section 29(2) of the Limitation Act, unless there is clear indication of its exclusion by implication. The use of the word "shall" and the longer period of limitatio....
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....verriding effect in section 260A or elsewhere in the Income-tax Act in this regard. 15. In State of Goa v. Western Builders [2006] 6 SCC 239, the Supreme Court was concerned with the question of applicability of section 14 of the Limitation Act, 1963, to the Arbitration and Conciliation Act, 1996. That was a case where the award was given by the sole arbitrator on February 7, 1995. Aggrieved by the award, the petition was filed before the Civil Court, Civil Judge, Margao, under sections 30 and 53 of the Arbitration Act, 1940, for making the award rule of the court. An objection was raised by the State of Goa that since the Arbitration and Conciliation Act, 1996, has come into force, the civil court has no jurisdiction to entertain the proceedings under the Arbitration Act, 1940. The civil judge disposed of the proceedings by holding that the Arbitration and Conciliation Act, 1996, was applicable and that there is no provision for making the award a rule of the court. The State of Goa then filed a petition under section 34 of the Arbitration and Conciliation Act, 1996, for setting aside the award and made an application under section 14 read with section 5 of the Limitation Act, ....
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....is no reason why section 14 of the Limitation Act (sic not) be read in the Act of 1996, which will advance the cause of justice. If the statute is silent and there is no specific prohibition then the statute should be interpreted which advances the cause of justice. Our attention was invited to various decisions of this court but we shall refer to a few of them which have some relevance." 16. It is pertinent to notice here that before the Supreme Court, the argument was advanced that section 34 was a complete code in itself and the operation of sections 5 and 14 of the Limitation Act was excluded was accepted only with regard to section 5 because of the expression "but not thereafter" in the proviso to sub-section (3) of section 34. In respect of exclusion of section 14 of the Limitation Act, the argument was rejected. The Supreme Court observed that since there is no prohibition, there is no reason why section 14 of the Limitation Act be not read in the Act of 1996. 17. The Calcutta High Court in the case of CIT v. Anandilal Poddar and Sons Ltd. [2005] 279 ITR 104 has taken the view that the High Court has power to condone the delay in filing the appeal under section 260A. I....
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....A while providing for special period of limitation, in sub-section (2), the statute remains silent with regard to the question that by necessary implication the application of sections 4 to 24 is excluded, the court is not supposed to presume such exclusion, particularly, when there is nothing to hold that the provisions of section 260A are hit by section 29(2) of the Limitation Act or that the application of sections 4 to 24 is expressly excluded or even by necessary implication. Therefore, we are unable to agree with the contention raised by Mr. Murarka, learned counsel for the respondent, that section 5 has no manner of application in respect of an appeal preferred under section 260A." 18. It is true that the Calcutta High Court has not considered Fairgrowth Investments Ltd. [2004] 122 Comp Cas 683 (SC) and the argument was not advanced before that court in the manner it has been advanced by Mr. S.K. Kakodkar before us but, in our view, the conclusion would not be different for the reasons that we have already indicated above and which we need not repeat. 19. As to whether an application under section 5 of the Limitation Act, 1963, seeking condonation of delay in ....
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.... [1992] 64 Taxman 6." 20. The Division Bench of this court in Commissioner of Customs (Import) v. S. C. Gupta (Customs Application No. 1 of 2001, decided on July 27, 2006), was concerned with the question of applicability of section 5 of the Limitation Act in respect of the application for reference to the High Court from the Central Excise and Gold (Control) Appellate Tribunal (the CEGAT) under section 130A of the Customs Act. The Division Bench, inter alia, considered : (i) CIT v. Taylor Instrument Co. (India) Ltd. [1992] 64 Taxman 6 (Delhi) ; (ii) Nihalkaran v. CWT [1987] 168 ITR 508 (MP) [FB] ; (iii) State of Haryana v. Free Wheel (India) Ltd. 104 STC 259 (P&H) ; (iv) CIT v. Orissa Concrete and Allied Industries Ltd. [2003] 264 ITR 186 (Cal) ; and (v) Fairgrowth Investments Ltd. [2004] 122 Comp Cas 683 (SC) and held that the Customs Act, 1962, does not contain any provision which excludes the applicability of sections 4 to 24 of the Limitation Act. 21. Thus, there is an overwhelming line of cases holding section 5 of the Limitation Act applicable to the matters in appeal and reference applications to the High Court under the Indian Income-tax Act, the Customs Act and the ....
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....approve the said view. This being the position, section 5 of the Limitation Act is not attracted to the proceedings initiated under section 8 of the Act. The right conferred under section 8 is a statutory right. Even otherwise, in our view, the position as regards the applicability of section 5 of the Limitation Act to an application under section 8 of the Act does not get altered. As already stated above, the Act is a self-contained code inasmuch as the Act provides to enforce the rights of pre-emption, forum is provided, procedure is prescribed, remedies including the appeals and revisions are provided, penalties are indicated for non-compliance with the orders and powers are given for restoration of land. Further period of limitation is also specifically prescribed to make an application under section 8 of the Act and for preferring appeals or revisions under the provisions of the Act. All these and a few other provisions are clear enough to indicate that the Act is a complete code in itself dealing with the rights of pre emption. The second proviso to section 14-H specifically provides for the application of section 5 of the Limitation Act in the matter of preferring an appeal ....