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2009 (9) TMI 5
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.... 1961 (hereinafter referred to as the ''Act 1961') by the Revenue as well as by the Assessee. It provides for filing of an appeal in the form of a memorandum of appeal within 120 days from the date on which the order appealed against is received by the Assessee or the Chief Commissioner or the Commissioner. It is an admitted position that all these appeals have been preferred beyond the period of limitation as provided under the aforesaid Section and the appellants have filed applications for extension of prescribed period of limitation and for admission of appeals after condoning the delay. When said applications for condonation of delay were placed for consideration before a Division Bench of this Court, the Division Bench by order dated 20.08.2007 referred the following question for determination by a larger Bench:- "As to whether the period of limitation prescribed for filing an appeal under Section 260-A (2) of the Income Tax Act, 1961 is subject to the provisions contained in Sections 4 to 24 of the Limitation Act, 1963 as provided under Section 29 (2) of the Limitation Act, 1963?" Hon'ble the Chief Justice on reference so made, directed the matter to be heard by three ....
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.... three main ingredients are required to be satisfied, namely:- (1) The special or local law must provide for a period of limitation for any suit or appeal. (2) The said period of limitation must be different from the period prescribed by the Schedule to the Act 1963. (3) The application of Sections 3 and 4 to 24 of the Act 1963 has not been expressly excluded by the special law. It is common ground that the Act 1961 has provided for a period of limitation for filing an appeal and the said period of limitation is different from the period prescribed by the Schedule to the Act 1963. It is relevant here to state that Section 260A of the Act 1961 prescribes limitation of 120 days whereas Article 116 of the Schedule appended to the Act 1963 provides limitation of 90 days for filing appeal to the High Court. In view of the above, unhesitatingly, the first two requirements are satisfied. It is contended on behalf of the appellants that once conditions nos. 1 and 2, referred to above, have been satisfied, Section 29 (2) of the Act 1963 would apply. Reliance has been placed on a decision of the Supreme Court in the case of Mukri Gopalan Vs. Cheppilat Puthanpurayil Abooback....
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....f the Limitation Act to appeals filed before appellate authority under S. 18 of the Act. Consequently, all the legal requirements for applicability of S. 5 of the Limitation Act to such appeals in the light of S. 29 (2) of Limitation Act can be said to have been satisfied. ..." (Underlining ours) Submission of the counsel for the appellants is that neither Section 260A of the Act 1961 nor any other provision thereof expressly excludes the applicability of Sections 4 to 24 of the Act 1963 and, therefore, Section 29 of the Act 1963 will apply and once it is held so, Section 5 of the Act 1963 would be available for extending the time for filing appeals and condoning the delay in filing appeals under Section 260A of the Act 1961. It is further contended that when the legislature has used the expression "expressly excluded", one has to bank upon the provisions of the Act 1961 to come to that conclusion and the said conclusion cannot be arrived at by process of a detailed reasoning. Reference in this connection has been made to a decision of this Court in the case of Harbir Singh Vs. Ali Hasan & Ors., AIR 1966 All. 161, and our attention has been drawn to the following paragraph of th....
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....pen to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject matter and the scheme of the special law excludes their operation. One can come to the conclusion that when a special law does not provide for application of Section 5 of the Act 1963, it is expressly excluded. A reference in this connection can be made to a decision of the Supreme Court in the case of Hukumdev Narain Yadav Vs. Lalit Narain Mishra, (1974) 2 SCC 133, in which it has been held as follows:- "... Even assuming that where a period of limitation has not been fixed for election petitions in the Schedule to the Limitation Act which is different from that fixed under Section 81 of the Act, Section 29 (2) would be attracted, and what we have to determine is whether the provisions of this Section are expressly excluded in the case of an election petition. It is 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. As usual the meaning given in the Dictionary has been relied upon, but wh....
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....ants, Kanpur, AIR 1975 SC 1039, lends support to aforesaid view, which would be evident from paragraphs 12 and 13 of the judgment, which read as follows:- "12. If the legislature willfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation by analogy or implication, something what it thinks to be a general principle of justice and equity. " To do so"--(at p. 65 in Prem Nath L. Ganesh v. Prem Nath L. Ram Nath, AIR 1963 Punj. 62. per Tek Chand, J.) "would be entrenching upon the preserves of Legislature", the primary function of a court of law being jus dicere and not jus dare. 13. In the light of what has been said above, we are of the opinion that the High Court was in error in importing whole hog the principle of Section 14(2) of the Limitation Act into Section 10 (3-B) of the Sales-tax Act." The Supreme Court had the occasion consider this question in the case of to L.S. Synthetics Ltd. Vs. Fairgrowth Financial Servi....
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....ons 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. In other words, the applicability of the provisions of the Limitation Act, therefore, 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. The scheme of the Central Excise Act, 1944 support the conclusion that the time limit prescribed under Section 35H (1) to make a reference to High Court is absolute and unextendable by court under Section 5 of the Limitation Act. It is well settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act." Bearing in mind the principle aforesaid, we proceed to consider the scheme of the Act. It hardly needs any discussion to hold that the Act 1961 is a complete Code in itself. Chapter XX of the Act 1961 deals with appeals and revisio....
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....erred under Section 260A of the Act, 1961. Now referring to the decision of this Court in the case of Harbir Singh (supra), same in no way supports the plea of the appellants. Various provisions of the Act 1961, which we have referred to above, signify exclusion of the Act 1963. True it is that the Full Bench of the Bombay High Court in the case of Velingkar Brothers (supra) has held that Section 5 of the Act 24 of 1963 shall apply in case of appeals filed under Section 260A of the Act 1961, but in view of the decision of the Supreme Court in the case of Hongo India (Pvt.) Ltd. (supra), it is difficult to follow its reasoning. The decision of the Bombay High Court is based on its earlier decisions in the cases relating to Customs Act and other Acts. However, the Supreme Court in the case of Hongo India (Pvt.) Ltd. (supra) considered the provisions of the Central Excise Act vis-à-vis Section 29 (2) of the Act 1963 and in face of enunciation of law in this case, it is difficult to follow the reasoning and conclusion of the Bombay High Court in the aforesaid case relied on by the appellants. Accordingly, answer to the question formulated is in the negative and it is held tha....
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....cation has been made under sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under Rule 11, decide to hear the appeal." Sub-rule (1) of Rule 3-A of Order XLI of the Code provides for procedure for presenting an appeal after the expiry of period of limitation and it contemplates filing of an application supported by an affidavit setting forth the facts to satisfy the Court about the sufficient cause for not preferring the appeal within time. Sub-rule (2) thereof provides for notice to the respondent in case such an application is not rejected at the threshold and sub-rule (3) mandates that an order for stay of execution of a decree against which appeal is proposed to be filed shall not be granted so long the decision is not taken to hear the appeal. Therefore, in our opinion, Order XLI Rule 3-A of the Code is not an independent provision conferring jurisdiction on the Appellate Court to condone the delay, but provides for the procedure to be followed for filing and considering the application for condonation of delay. In our opinion, in view of th....