2010 (2) TMI 177 - HC - Income Tax

Condonation of Delay- On appeal by the assessee under section 260A of the Income Tax Act, 1961, with an application invoking the provisions of section 5 of the limitation Act, 1963 seeking condonation of two days delay in filing the appeal. Held that- dismissing the appeal, that wherever the Legislature desires to provide for condonation of delay, a specific provision had been made in the Act and therefore, if no such provision had been made, then no application under section 5 of the Limitation Act could be filed as the Act itself is a complete code. Therefore, the application seeking condonatin of delay filed under section 5 of the Limitation Act could not be accepted.

Summary

Issues:
Challenge to order dated July 4, 2008, passed by the Income tax Appellate Tribunal regarding assessment year 2004-05. Determination of whether delay in filing the appeal beyond the prescribed period could be condoned by invoking section 5 of the Limitation Act.

Analysis:

Issue 1: Challenge to Tribunal's Order
The appeal under section 260A of the Income-tax Act, 1961 contested the order of the Income tax Appellate Tribunal dated July 4, 2008, regarding the assessment year 2004-05. The primary question before the court was whether the delay in filing the appeal beyond the specified 120 days could be excused by utilizing section 5 of the Limitation Act.

Issue 2: Condonation of Delay
The appellant also submitted an application invoking section 5 of the Limitation Act to request condonation of a 2-day delay in filing the appeal. The court referred to a Supreme Court judgment in Commissioner of Customs and Central Excise v. Hongo India, which established that in the presence of a special law providing for limitation, the provisions of the Limitation Act may not apply. The court highlighted that the Income-tax Act, similar to the Excise Act, does not contain provisions for condonation of delay beyond the prescribed period.

Issue 3: Legislative Provisions
Upon examining sections 143(1), 249(3), and 260A(2)(a) of the Income-tax Act, the court noted that specific provisions for condonation of delay are included where necessary. The absence of such provisions implied that the Act itself serves as a comprehensive code, akin to the Excise Act, as interpreted by the Supreme Court. Consequently, the court held that the application seeking condonation of delay under section 5 of the Limitation Act could not be entertained.

Conclusion:
Based on the above analysis, the court dismissed the application seeking condonation of the 2-day delay in filing the appeal. Consequently, the appeal itself was deemed time-barred and was dismissed accordingly. The judgment reaffirmed that in the absence of specific provisions for condonation of delay in the Income-tax Act, applications under the Limitation Act cannot be accepted, aligning with the principles established by the Supreme Court in similar cases.