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TMI Blog2009 (8) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... RA and R. K. GUPTA JJ. Sanjay Lal for the appellant. Alok Aradhe and Sumit Nema as amicus curiae. JUDGMENT The judgment of the court was delivered by 1. DIPAK MISRA J.- These three appeals preferred under section 260A of the Income-tax Act, 1961 (for brevity "the Act"), were listed for default for not filing the application for condonation of delay supported with affidavit. At that juncture, a query was made from Mr. Sanjay Lal whether the High Court can condone the delay when an appeal is preferred beyond the time prescribed under section 260A of the Act in view of the decision rendered by the apex court in Commissioner of Customs and central Excise v.Hongo India P Ltd. [2009] 315 ITR 449 (SC); [2009] 5 SCC 91. Mr. Alok Aradhe learned senior counsel and Mr. Sumit Nema, learned counsel were appointed as amicus curiae. 2. Be it noted, there is no dispute over the fact that the appeals have been preferred beyond the period of limitation. 3. The centripodal question that emerges for consideration is whether the High court can condone the delay and if the delay is not condonable, there is no justification for granting time to file an application for cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law 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 sub section (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." 5. On a scrutiny of the aforesaid provision, it is clear as noon day that no provision for condonati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench as a two-judge Bench had expressed its doubt with regard to the decision in Commissioner of Customs, Central Excise v. Punjab Fibres Ltd. [2008] 3 SCC 73. Their Lordships referred to the provisions under section 35 of the Central Excise Act, 1944, and dealt with the contention whether in the absence of specific prohibition in the said enactment for condoning the delay, the High Court has power under section 5 of the Limitation Act, 1963, to condone the delay beyond the period prescribed under the main statute. The apex court took note of the fact that in the case of appeal to the High Court under section 35G and reference to the High Court under section 35H of the 1944 Act, 180 days have been provided for preferring the appeal and revision and beyond that, there is no further clause empowering the High Court to condone the delay. Their Lordships referred to sections 5 and 29(2) of the Limitation Act and took note of the decisions rendered in M. V. Elisabeth v. Harwan Investment and Trading Pvt.Ltd. [1993] Supp 2 SCC 433, M. M. Thomas v. State of Kerala [2000] 1 SCC 666, Sharda Devi v. State of Bihar [2002] 3 SCC 705 and Union of India v. Popular Construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter expiry of the prescribed period of 180 days. Even otherwise, for filing an appeal to the Commissioner and to the Appellate Tribunal as well as revision to the Central Government, the Legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail of the same. We are of the view that the Legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision. Though, an argument was raised based on section 29 of the Limitation Act, even assuming that section 29(2) would be attracted, what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to the High Court. It was 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. In this regard, we have to see the scheme of the special law which her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se also." 11. Be it noted, in this case their Lordships were dealing with the appeal under section 35G of the Central Excise Act, 1944. 12. It is submitted by Mr. Aradhe that the decision rendered in Hongo India Private Limited [2009} 315 1TR 449 (SC) is distinguishable as that was dealing with a reference and further under a different statute and, therefore, the said principle would not be applicable to the Income-tax Act and further, in the absence of any direct proscription, the applicability of sections 4 to 24 of the Limitation Act should not readily be excluded from the sphere of the 1961 Act. In this regard, he has commended us to the decision rendered in Vidyacharan Shukla v. Khubchand Baghel, AIR 1964 SC 1099. The learned senior counsel has specifically drawn our attention to paragraph 26 of the decision wherein the Constitution Bench has held as under (page 112): "The contention is that sub-section (3) of section 116A of the Act not only provides a period of limitation for such an appeal but also the circumstances under which the delay can be excused, indicating thereby that the general provisions of the Limitation Act are excluded. There are two answers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of the special law, that is, in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions 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 excluded their operation. The provisions of section 3 of the Limitation Act that a suit instituted, appeal preferred and application made after the prescribed period shall be dismissed are provided for in section 86 of the Act which gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of section 81, 82 or 117. It will be seen that sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Anwari Basavaraj Patil v. Siddaramaih [1993] 1 SCC 636, it has been held as follows (headnote): "There is no provision in the Representation of the People Act, 1951, making all or any of the provisions of the Limitation Act applicable to the proceedings under that Act. Even by virtue of section 29(2) of the Limitation Act the provisions thereof would not become applicable to the recrimination notice under section 97. The Representation of the People Act is a self-contained code. The proviso to section 97(1) requiring a recrimination notice to be given to High Court within 14 days 'from the date of commencement of the trial' [which in view of the Explanation to section 86(4) means within 14 days of the 'date fixed for the respondents to appear before the High Court to answer the claim or claims'] has also a particular meaning and object behind it. The idea is that the recrimination notice, if any, should be filed at the earliest possible time so that both the election petition and the recrimination notice are tried at the same time. The recrimination notice is thus comparable to an election petition. When the Supreme Court in H. N. Yadav case has already held that section 5 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and other provisions of the Act expressly or impliedly provides for the period of limitation. In that context, it has been held as follows (page 262) : "8. There is yet another good reason for insisting that right of preemption must be exercised within the period specified under section 8 of the Act so that the rights of purchasers of a land cannot be eclipsed for a long time. Right of pre-emption was sought to be exercised after six years and four years from the dates of transfer respectively as against the period of four months prescribed under section 8 of the Act without any scope for extension of that period. Sub-section (3) was added to section 8 of the Act by the West Bengal Land Reforms (Amendment) Act, 1972, with effect from February 15, 1971. Prior to February 15, 1971, an application under section 8 was required to be made to the 'Revenue Officer specifically empowered by the State Government in this behalf. 'This phrase was substituted by the phrase 'munsif having territorial jurisdiction' by the aforementioned amendment. Even after this amendment when an application is required to be made before the Munsif Court, no amendment was made to section 8 of the Act ei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been held in Union of India v. Popular Construction Co. [2001] 8 SCC 470 that the word 'exclusion' also includes 'exclusion by necessary implication'. This proposition of law is not in dispute. The only question is-does the Act expressly or necessarily exclude the provisions of the Limitation Act? We think it does. The fact that it has provided for a power to condone delay under section 10(3) of the Act, shows that Parliament had consciously excluded the power of the court in relation to section 4(2). This view also finds support in the decision of this court in Gopal Sardar v. Karuna Sardar [2004] 4 SCC 252. The statutory provision under consideration in that case was section 8 of the West Bengal Land Reforms Act. It was held (page 265) : 'When in the same statute in respect of, various other provisions relating to filing of appeals and revisions, specific provisions are made so as to give benefit of section 5 of the Limitation Act and such provision is not made to an application to be made under section 8 of the Act, it obviously and necessarily follows that the Legislature consciously excluded the application of section 5 of the Limitation Act'." (emphasis supplied) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice by Mr. Nema rendered by the Bombay High Court in CIT v. Grasim Industries Limited , (Income-tax Appeal (L) No. 3592 of 2008). The learned counsel has commended us to paragraph 6 of the said judgment. It reads as follows: "6. We have carefully considered the rival submissions. It is not in dispute that section 35G of the Excise Act is in pari materia with section 260 of the Income-tax Act. Section 260A(7) of the Income-tax Act as well us section 35G(9) of the Excise Act provide that the provisions of the Code of Civil Procedure, 1908, relating to appeals to the High Court as far as may be, apply to the appeals filed under the respective provisions. No such provision is to be found in section 35H of the Excise Act. Therefore, the argument advanced by the counsel for the Revenue that section 35G and section 35H of the Excise Act are materially different cannot be said to be wholly without substance. However, once the apex court has held that the High Court has no power to condone delay in filing appeal under section 35G of the Excise Act, we have no option but to hold that this court has no power to condone delay under section 260A of the Income-tax Act because section 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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