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2009 (10) TMI 123 - HC - Income TaxDelay in filing appeal to High Court - The power conferred upon the courts by virtue of section 5 of the Limitation Act to condone the delay, if any, in presenting either an appeal or an application is not available to this court while exercising jurisdiction under section 260A - Parliament did not intend to vest any discretion on the High Court to admit appeal presented beyond the period of limitation specified under the Act under section 260A sub-section (2)(a), i.e.120 days. So it is held that HC has not power to condone delay
Issues Involved:
1. Maintainability of the application for condonation of delay under Section 5 of the Limitation Act, 1963, in filing an appeal under Section 260A of the Income-tax Act, 1961. 2. Applicability of Section 5 of the Limitation Act to appeals under Section 260A of the Income-tax Act. Detailed Analysis: 1. Maintainability of the Application for Condonation of Delay: The primary issue was whether an application to condone a delay of 290 days in filing an appeal under Section 260A of the Income-tax Act, 1961, could be maintained by invoking Section 5 of the Limitation Act, 1963. The respondent objected to the maintainability, arguing that Section 5 of the Limitation Act does not apply to appeals under Section 260A of the Income-tax Act. The court had to determine whether the provisions of the Limitation Act could be invoked in this context. 2. Applicability of Section 5 of the Limitation Act to Appeals under Section 260A of the Income-tax Act: The court examined whether the provisions of the Limitation Act, specifically Section 5, could be applied to condone delays in filing appeals under Section 260A of the Income-tax Act. The respondent's counsel argued, relying on the Supreme Court's decision in Commissioner of Customs and Central Excise v. Hongo India P. Ltd. [2009] 315 ITR 449 (SC), that the Income-tax Act is a complete code in itself regarding appeals and revisions, and hence, the Limitation Act's provisions are inapplicable. The Supreme Court had held that the scheme of the Central Excise Act, which is similar to the Income-tax Act, excludes the application of the Limitation Act by necessary implication. The court noted that the Income-tax Act provides specific periods for filing appeals and revisions and includes provisions allowing certain appellate authorities to condone delays. However, it conspicuously omits any provision enabling the High Court to condone delays for appeals under Section 260A. This absence suggests a legislative intent not to permit such condonation. The court inferred that the scheme of the Income-tax Act, as a complete code, excludes the applicability of Section 5 of the Limitation Act for appeals to the High Court. The applicant's counsel argued that Section 260A(7) of the Income-tax Act, which states that the provisions of the Code of Civil Procedure, 1908, relating to appeals to the High Court apply to appeals under this section, implies that the High Court can condone delays. However, the court found that Rule 3A of Order 41 of the Civil Procedure Code, which prescribes procedures for appeals presented beyond the limitation period, does not grant the legal authority to condone delays but assumes such authority exists under Section 5 of the Limitation Act. Therefore, the court rejected the argument that Section 260A(7) read with Rule 3A authorizes condonation of delay in appeals under the Income-tax Act. The court also considered the Full Bench decision of the Bombay High Court in CIT v. Velingkar Brothers [2007] 289 ITR 382, which allowed for the condonation of delay under Section 260A. However, it noted that this decision predated the Supreme Court's ruling in Hongo India P. Ltd. and that a later Division Bench of the Bombay High Court, in CIT v. Grasim Industries Limited [2009] 319 ITR 154, concluded that the High Court cannot condone delays under Section 260A. Additionally, a Full Bench of the Allahabad High Court in CIT v. Mohd. Farooq [2009] 317 ITR 305 also opined that Section 5 of the Limitation Act does not apply to appeals under Section 260A. Given these considerations, the court upheld the preliminary objection, dismissed the application as not maintainable, and consequently rejected the appeal.
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