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TMI Blog2009 (10) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... I. T. A. No. 44 (Gauhati)/2004 and in I. T. A. No. 51 (Gauhati)/2004 for the assessment year 2000-01 be condoned. The application is filed by the Revenue invoking the provisions of section 5 of the Limitation Act, 1963. 3. The respondent is served, represented by Dr. A. K. Saraf, learned senior counsel. 4. When the matter is taken up today Dr. A. K. Saraf, learned senior counsel raised a preliminary objection regarding maintainability of the present application. The learned counsel argued that section 5 of the Limitation Act has no application to the appeals under section 260A of the Income-tax Act. 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 of the Income-tax Act. 5. The submission of the learned counsel for the respondent is that the provisions of the Income-tax Act in so far as appeals and revisions under the Act are concerned, are a complete code in themselves prescribing various aspects of appeals and revisions such as the forum, the procedure and the limitation and it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in any special or local law to that effect. Since the Central Excise Act (no doubt a special enactment) does not contain any such express provision of exclusion of the application of section 5 of the Limitation Act ought not to be implied. The Supreme Court categorically rejected the said submission. In the said judgment, it was held by the Supreme Court as follows (page 459) : "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 that the scheme of the special law here in this case is the Central Excise Act. The nature of the remedy provided therein is 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 246A of the Income-tax Act specifies the orders which are appealable before the Commissioner (Appeals). The section contains a long list of orders which are appealable, the details of which may not be necessary for us for the present purpose Section 249 deals with the form of the appeal and the period of limitation for the appeal contemplated under Section 246A. The relevant provisions in the context are sub-section (2) and sub-section (3) of section 249. While sub-section (2) stipulated that an appeal is required to be filed within 30 days from the relevant date specified there under sub-section (3) authorises the Commissioner (Appeals) to admit an appeal after the expiry of the period of limitation if the Commissioner is satisfied that the appellant had sufficient cause for not presenting the appeal within the prescribed period of 30 days. 12. Similarly, section 253 of the Income-tax Act provides for appeals to an Appellate Tribunal, constituted under section 252 of the Act, against the various orders enumerated in section 253. Once again sub-sections (3) and (5) of section 253 are relevant in the context. While sub-section (3) stipulates a period of limitation of 60 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 260A obligates this court to admit in appropriate cases appeals presented beyond the period of limitation, specified under the Act. Sub-section (7) of section 260A reads as follows : "(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." 16. According to the learned counsel for the applicant, since Parliament stipulated that the provisions of the Civil Procedure Code, relating to appeals to the High Court, apply to the appeals under the Income-tax Act. The provisions under the Civil Procedure Code which deal with the appeals to the High Court are section 96 and section 100 read with Orders 41 and 42. The learned counsel placed reliance on rule 3A of Order 41 of the Civil Procedure Code which, according to the learned counsel, authorizes the High Court receiving appeals to condone the delay, if any, in presenting the appeal. 17. Appeals to the High Court under the Civil Procedure Code could be filed under the provisions of sections 96 and 100. While section 96 deals with the appeals from original decrees se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that the High Court is entitled to condone the delay in presentation of appeal under section 260A by resorting to the power under section 5 of the Limitation Act but the decision of the Supreme Court in Commissioner of Customs and Central Excise v. Hongo India P. Ltd. [2009] 315 f 449 is later than the decision of the Bombay High Court and the provision and scheme of the Central Excise Act are substantially similar to the relevant provision of the Income-tax Act. On the other hand, a later Division Bench of the Bombay High Court in a judgment dated July 8, 2009, in Income-tax Appeal (L) No. 3592/08 ( CIT v. Grasim Industries Limited [2009] 319 ITR 154) had an occasion to consider both the abovementioned two decisions of the Full Bench of the Bombay High Court as well as the Supreme Court in the context of the jurisdiction of the High Court under section 260A of the Income-tax Act and came to the conclusion that the High Court cannot resort to section 5 of the Limitation Act for condoning the delay in admitting an appeal delayedly presented under section 260A of the Income-tax Act. 20. Another Full Bench of the Allahabad High Court in a case reported in CIT v. Mohd. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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