9911796707
TMI Blog2005 (9) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... 087 (All.) relied upon is already sub judice before the hon'ble High Court by way of departmental application under section 256(1) against it allowed by the Tribunal?" Briefly stated the facts giving rise to the present Reference No. 68 of 1987 are as follows: The reference relates to the assessment years 1977-78 and 1978-79. The assessments for the assessment years in question were completed under section 144 on February 20, 1981. The assessment orders were served on the assessee on March 9, 1981. The assessee moved an application under section 146 on April 9, 1981. Whereas under the stipulated provisions of the Act, the application under section 146 should have been filed on or before April 8, 1981. The assessee accordingly moved an application for condonation of the delay of one day under section 5 of the Limitation Act. The Income-tax Officer considered the submission of the assessee and observed that in view of the clear provisions of section 146, he had no powers to condone the delay. The Income-tax Officer accordingly rejected the applications under section 146 holding that it was barred by time. The assessee came up in further appeal before the Commissioner of Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated January 21,1986. The Tribunal has referred the aforementioned common question in I.T.R. No. 275 of 1991. Heard learned standing counsel for the Department, Shri Shambhu Chopra; learned counsel for the assessee submitted that he has no instructions in the matter. We find that there is a divergence of opinion of different High Courts on the aforesaid question of law. A Full Bench judgment of the Madhya Pradesh High Court in Nihalkaran v. CWT [1987] 168 ITR 508 has held with reference to section 27(3) of the Wealth-tax Act that the language of section 29(2) of the Limitation Act, 1963, which came into force with effect from January 1, 1964, is, however, materially different. Section 29(2) of the Limitation Act, 1963, inter alia, provides that sections 4 to 24 shall apply to a special or local law unless their application is expressly excluded, with the result unless the application of section 5 of the Limitation Act was expressly excluded to an application under section 27(3) of the Act, it would apply. It was held that section 5 of the Limitation Act applies to an application under section 27(3) of the Wealth-tax Act and reliance has been placed by it on a decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Venkaiah's case AIR 1978 AP 166 is perfectly correct and sound. It is well settled by the decisions of this court in Town Municipal Council v. Presiding Officer, Labour Court, [1970] 1 SCR 51; AIR 1969 SC 1335; [1969] 36 FJR 177 (SC), Nityanand M. Joshi v. Life Insurance Corporation of India [1970] 1 SCR 396; AIR 1970 SC 209; [1969] 36 FJR 324 (SC) and Sushila Devi (Smt.) v. Ramanandan Prasad [1976] 2 SCR 845; AIR 1976 SC 177, that the provisions of the Limitation Act, 1963, apply only to proceedings in 'courts' and not to appeals or applications before bodies other than courts such as quasi-judicial tribunals or executive authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on courts under the Codes of Civil or Criminal Procedure. The Collector before whom the appeal was preferred by the appellant herein under section 90 of the Act not being a court, the Limitation Act, as such, had no applicability to the proceedings before him. But even in such a situation the relevant special statute may contain an express provision conferring on the appellate authority, such as the Collector, the power to extend the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation Act by an express reference, it would none the less be open to the court to examine whether or and to what extent the nature of those provisions or the nature of the subject-matter of scheme of special law exclude their operation. The Supreme Court in the case of Gopal Sardar [2004] 4 SCC 252 has considered its earlier judgment given in the case of CST v. Parson Tools and Plants [1975] 35 STC 413 (SC); AIR 1975 SC 1039, Hukumdev Narain Yadav v. Lalit Narain Mishra, AIR 1974 SC 480 and other judgments. It has noted the departure made in section 29(2) of the Limitation Act, in comparison to the old Limitation Act, 1908. The relevant paragraph is reproduced below: "An important departure is made in section 29 sub-section (2) of the Limitation Act of 1963. Under the Indian Limitation Act, 1908, section 29(2)(b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the application of section 5 of the Limitation Act was specifically and in clear terms excluded, but under section 29(2) of the present Limitation Act, section 5 shall apply in case of special or local law to the extent to whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication of section 5 of the Limitation Act to the other provisions under the Act, itself means and amounts to 'express exclusion' of it satisfying the requirement of section 29(2) of the Limitation Act." It has come to the conclusion that its judgment given in the case of Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker [1995] 5 SCC 5 cannot be applied in support of the submission that section 5 of the Limitation Act is applicable to a proceeding under a special Act, with the observation that in "any case" the case of Mukri Gopalan [1995] 5 SCC 5 was decided by two learned judges of the court. Recently the Supreme Court in the case of L.S. Synthetics Ltd. v. Fair-growth Financial Services Ltd. [2004] 122 Comp Cas 185 (SC); [2004] 7 JT 254 (SC) has considered the question as regards the applicability of the Limitation Act to the proceedings under the Special Court (Trial and Offences Relating to Transactions in Securities) Act, 1992. It has been observed by the apex court that the Limitation Act, 1963, is applicable only in relation to certain applications and not all applications despite the fact that the words "other proceedings" added in the long title of the Act of 1963. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Limitation Act. It is enough for the purpose of this appeal to hold that section 29(2) of the Limitation Act, 1963 does not apply to proceedings under section 4(2) of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992. Since the appellant's petition of objection had been filed much beyond the period prescribed under that section, the Special Court was right in rejecting the petition in limine. The appeal is accordingly dismissed but without any order as to costs." In this case the Supreme Court has considered its various earlier judgments including in the cases of Vidyacharan Shukla [1964] 6 SCR 129 and Hukumdev Narain Yadav, AIR 1974 SC 480 and also in the case of Gopal Sardar v. Karuna Sardar [2004] 4 SCC 252. This case is an authority for the proposition that a departure has been made in section 29(2) of the Limitation Act of 1963 from the Indian Limitation Act, 1908. Under the Indian Limitation Act, 1908, section 29(2)(b) provides for the purpose of determining a period of limitation prescribed for any suit, appeal or application by any special law or local law the application of section 5 of the Limitation Act was specifically and in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fic exclusion of the Limitation Act in section 8 of that Act which provides the filing of application in the nature of a suit for enforcement of right of pre-emption by a purchaser. But even then the Supreme Court held that the provisions of the Limitation Act stands excluded so far as the delay in filing of the application under section 8 of the aforesaid Act is concerned. We have also examined the said question in connection with the late filing of a reference application under section 35H(1) of the Central Excise Act in Central Excise Reference Application (4) of 2001, Commissioner of Central Excise v. Salora International Limited and by the judgment dated September 13, 2005, have held that the general provisions of the Limitation Act will not apply to condone the delay in late filing of a reference application under section 35H(1) of the Central Excise Act by invoking section 29(2) of the Limitation Act, 1963. Coming to the facts of the present case we find that an application for reopening of assessment at the instance of the assessee under section 146(1) has to be filed "within one month from the date of service of notice of demand issued in consequence of assessment". Two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elay. There was also no application before the Central Board for condonation of delay. In the circumstances, the High Court ought not to have directed that delay in the production of the agreements be condoned. The courts are obliged to do justice according to the law. In ordering condonation of delay in these circumstances, it cannot, in our opinion, be said that justice according to the law was rendered by the High Court." We are conscious of the fact that the view which we are proposing to take in the matter may work some hardship in certain cases. But hardship or injustice may be a relevant consideration in applying the principles of interpretation of statute, but cannot be a ground for extending the period of limitation, as observed by the Supreme Court in a recent decision, Damodaran Pillai v. South Indian Bank Ltd., AIR 2005 SC 3460; [2005] 8 JT 197. In this case the Supreme Court was called upon to decide as to whether the inherent power of court for condonation of delay can be invoked by a court when by express provision, the applicability of section 5 of the Limitation Act has been excluded under Order 21 of the Code of Civil Procedure to an application for execution. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
