TaxTMI 
TaxTMI 
2009 (6) TMI 72
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....which the order appealed against was received by the appellants as provided under section 260A(2) of the Act. 2. Shri Rajeshwara Rao, learned counsel for the Revenue, submitted that the Income-tax Act, 1961, and the provisions of section 260A are not complete code in itself By virtue of sub-section (7) of section 260A, the provisions of the Code of Civil Procedure, 1908, relating to appeal are applicable to appeal under section 260A. Under Order 41, rule 3A of the Civil Procedure Code, application for condonation of delay, for condoning the delay in appeal is maintainable and that procedure is applicable to appeal under section 260A and, therefore, it cannot be said that section 5 of the 'Limitation Act does not apply to appeals under section 260A. Specific provisions have been made for condonation of delay under sections 249 and 253 and application under section 256(1) of the Income-tax Act for condoning the delay authorizing such Authorities/Tribunals to condone the delay only because these Authorities/Tribunals are not courts, however, no such provision has been made under sections 256(2) and 260 for condoning the delay in filing applications/appeals to the High Court, as secti....
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....ion of the said period if he is satisfied that the appellant had sufficient cause for not presenting it within the period. Section 253 deals with appeals to the Appellate Tribunal. Sub-section (3) of section 253 provides for limitation of 60 days from the date on which the order sought to be appealed against is communicated to the assessee or to the Commissioner, as the case may be, for filing appeal before the Appellate Tribunal. Under sub-section (5), the Appellate Tribunal may admit the appeal or permit the filing of memorandum of cross-objection after expiry of the relevant period if he is satisfied that there was sufficient cause for not presenting it within the period. Section 255(1) lays down the procedure to be followed by the Appellate Tribunal whereas section 260A deals with appeals to the High Court, which reads as under.: "260A.(1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal, before the date of establishment of the National Tax Tribunal if the High Court is satisfied that the case involves a substantial question of law. (2) The Chief Commissioner or the Commissioner or an assessee aggrieved by any order passed by t....
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.... Procedure Code, 1908, relating to appeals to the High Court, applicable in the case of an appeal under this section only where it is not otherwise provided in the Act. 9. In view of the specific provisions of the Act, as detailed hereinabove, question for our consideration is whether section 5 of the Limitation Act is applicable in respect of an appeal filed under section 260A of the Act ? 10. Shri Rajeshwara Rao, learned counsel for the appellants, contended that in the absence of any specific prohibition in the Act for condoning the delay, particularly, in section 260A of the Act, section 29(2) of the Limitation Act is applicable. He further argued that sub-section (7) of section 260A specifically makes the provisions of the Civil Procedure Code in relation to appeal before the High Court applicable and, therefore, as per the provisions of Order 41, rule 3A of the Civil Procedure Code, the High Court is empowered to entertain and decide any application for condonation of delay in filing the appeal. 11. In the matter of Velingkar Brothers [2007] 289 ITR 382 (Bom) [FB] the question whether section 5 of the Limitation Act, 1963, shall apply in case of an appeal filed under secti....
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....f the Limitation Act in appeal before the High Court under section 260A of the Income-tax Act, held that though section 260A of the Income-tax Act expressly provides for a period of limitation for preferring an appeal to the High Court, the same does not imply that the application of sections 4 to 24 of the Limitation Act is excluded. In order to exclude the application of sections 4 to 24 within the meaning of section 29 of the Limitation Act the necessary exclusion must be express and such express exclusion is to be inferred by necessary implication from the statute itself. The court is not supposed to presume exclusion on account of the statute being silent in that aspect. It cannot be held that section 5 of the Limitation Act has no application in respect of appeal preferred under section 260A. 13. The Supreme Court in the matter of Hongo India (P.) Ltd. [2009] 315 ITR 449, while dealing with the question 'whether the High Court in the reference application under section 35H(1) of the unamended Act, has power under section 5 of the Limitation Act, 1963, to condone the delay beyond the period prescribed under the main statute, i.e., the Central Excise Act', held that the High C....
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....s received by the aggrieved party. There is no provision to condone the delay in filing the appeal beyond the prescribed period of 180 days. The unamended section 35H provides for reference application to the High Court. Under sub-section (1), the Commissioner of Central Excise or other party within a period of 180 days of the date on which he is served with notice of an order under section 35C direct the Tribunal to refer to the High Court any question of law arising from such order of the Tribunal. Application for reference is to be made to the High Court within 180 days and there is no provision to extend the period of limitation for filing application to the High Court beyond the said period and condone the delay. 16. After a close scrutiny of the provisions contained in Chapter VI-A of the Central Excise Act, 1944, we find substance in submission of learned counsel for the appellants that the provisions contained in Chapter VI-A of the Central Excise Act, 1944, which deal with appeal, are in pari materia to the provisions contained in Chapter XX of the Act, which also deal with appeals and revisions under the Income-tax Act. 17. In the matter of Ahmedabad Pvt. Primary Teache....
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....td. v. Textiles Committee [1989] Supp (1) SCC 168, the hon'ble Supreme Court while considering as to what statutes are considered to be in pari materia, referred to Statutes and Statutory Construction by Sutherland thus (page 188): "Statutes are considered to be in pari materia to pertain to the same subject-matter when they relate to the same person or things, or to the same class of persons or thing or have the same purpose or object. (Statutes and Statutory Construction, Volume 2, page 535, Third edition.)" 19. In the matter of J. K. Steel Ltd. v. Union of India AIR 1970 SC 1173, the hon'ble Supreme Court, while considering the pari materia provisions of the Central Excises and Salt Act (1944), Sch. I, item 26AA—Tariff Act (1934), Sch. I, entry 63(36), held in paragraph 29 of the judgment that Acts being in pari materia must be taken together as forming one code and as interpreting and enforcing each other. In paragraph 26 of the above judgment, referring to its earlier judgment in the matter of C. A. Abraham v. ITO (1961) 41 ITR 425 ; AIR 1961 SC 609, it was observed that (page 1182): "In interpreting a fiscal statute the court cannot proceed to make good deficiencies if th....
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....cts have been enacted by the Central Legislature. The Central Excise Act was enacted to consolidate and amend the law relating to central duties on excise whereas the Income-tax Act, 1961, was enacted to consolidate and amend the law relating to income-tax and super tax. Both the Acts are periodically amended through the Finance Act to give effect to the financial proposals of the Central Government for the relevant financial years and thus have the same purpose and object. Therefore, on the doctrine of "pari materia", reference to the Central Excise Act is a permissible aid to the construction of the provisions of the Act. 22. As far as the arguments advanced by Shri Rajeshwara Rao, learned counsel for the appellants herein based on the judgment of the Full Bench of the Bombay High Court that sub-section (7) of section 260A of the Act makes the provisions of Civil Procedure Code applicable in relation to appeal to the High Court and, therefore, the Income-tax Act is not a complete code is concerned, from a perusal of sub-section (9) of section 35G of the Central Excise Act, we find that the same is exactly identical as sub-section (7) of section 260A of the Act. 23. In the matte....