TMI Blog2010 (3) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... arely applicable to section 260A appeals - The section 5 application is allowed - IT APPEAL NOS. 136 AND 356 OF 2009 - - - Dated:- 3-3-2010 - KALYAN JYOTI SENGUPTA, INDRA PRASANNA MUKERJI, JJ. JUDGMENT Kalyan Jyoti Sengupta, J. I have had the benefit of going through the draft judgment of my learned brother, His Lordship the hon'ble Mr. Justice I.P. Mukerji. I record my full agreement as far as the ordering portion is concerned. However, I would like to express my own views having regard to the complexity of the matter. My learned brother has recorded the facts and also the problem posed before this court. His Lordship has been pleased to note various decisions of the Apex Court and High Courts cited at the Bar. I have understood in my own way the precise question involved for the disposal of the applications for condonation of delay in preferring appeal under section 260A of the Income-tax Act, 1961 (hereinafter Act 1961) in view of the ratio laid down in the case of CCE v. Hongo India (P.) Ltd. [2009] 315 ITR 449 (SC) and the legislative amendment after the said judgment was rendered in the sections 35G and 35H of the Central Excise Act, 1944 (hereinafter Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finally thereafter as per the scheme of the statute. In the event in case of reference by virtue of section 29(2) of the 1963 Act section 5 thereof is applied then there will be no end of the matter as the court will be flooded with applications for condonation of delay only for the opinion. In the sequel the litigations involving revenue which has impact on the economy of the country will be remaining unresolved. Therefore, in the absence of specific provision the intention of the Legislature may reasonably be inferred not to make section 5 of the Limitation Act applicable in contrast to the provisions of inter-departmental appeal where power of condonation in different manner and methods have been provided. 6. The Supreme Court in that case held amongst other, that the Act 1944, is a complete code by itself and subsequently several High Courts following the above judgment of the Supreme Court pronounced that the 1961 Act is a complete code by itself. When a particular statute having the status of completeness in code no external aid of any other Act for interpreting any provision of that statute is required. Hence following respectfully the ratio of the said Hongo India (P.) L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act 1944 and also section 260A of the Act 1961 the Legislature intended to exclude by necessary implication, application of section 5 of the 1963 Act. Sub-section (9) of section 35G of the Act 1944 specifically provides applicability of the Civil Procedure Code relating to appeals to the High Court. It is settled position of law when a particular point of law has been left undecided in any judgment of the Apex Court, such judgment cannot be a binding precedent. I am of the view that this question is still open for decision by this court to gather intention of the Legislature. Considering the above point the Allahabad High Court by its Full Bench decision and the Madhya Pradesh High Court discussed the implication of the provision of rule 3A of Order 41 of the Civil Procedure Code in section 260A of the 1961 Act. In this judgment, their Lordships were not called upon to decide what was the intention of the Legislature in making provision of this nature. Their Lordships applied the doctrine of pari materia and held following the ratio of Hongo India (P.) Ltd.'s case (supra) that under section 260A there is no place of power of condonation. I feel that when in section 260A under sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for condonation of delay. I am of the opinion with insertion of procedure the Legislature has intended not to exclude the applicability of sections 4 to 24 of the 1963 Act by virtue of section 29(2) of the same Act and it would appear intrinsically from section 260A of Act 1961 as analysed above. We, therefore, accept with respect the conclusion arrived at by our court in the case of Anandilal Poddar Sons Ltd. (supra). It would not be out of context to mention that no Legislature makes any law intending to prejudice the right of the subject. If power of condonation of delay in the said section is not inferred then there would be serious prejudice to the litigants. For example Government is known to act through bureaucratic hassles and indecision, so it is natural as experience shows Government action is always delayed. In this case for delay of even one single day Government's right of remedy would be jeopardized in a clear case of injustice at the hands of Tribunal. Similar will be the situation in case of individual litigant(s) when they may not be able to take steps within the time for any unforeseen or impossible circumstance. I feel in view of my above discussion a case of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he court can condone and it is inconsistent to a great extent with the power under section 5 of the Limitation Act which does not restrict any period of time. 9. Per Indra Prasanna Mukerji, J. - The question to be answered in this application is whether in an appeal filed under section 260A of the Income-tax Act, 1961, beyond the period of limitation, the High Court has the power to condone the delay. 10. Section 260A enacts as follows : "(1) Appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal before the date of establishment of the National Tax Tribunal, if the High Court is satisfied that the case involves a substantial question of law. (2) The Chief Commissioner or the Commissioner or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be- (a) filed within one hundred and twenty days from the date on which the order appealed against is received by the assessee or the Chief Commissioner or Commissioner . . . (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (3) Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of this Act regarding Departmental appeals and appeal before the Tribunal and from Tribunal to the High Court and reference applications are in pari materia with the corresponding provisions of the Income-tax Act, 1961. In that case Hongo India (P.) Ltd. (supra), a three-Judge Bench of the Supreme Court held that the High Court had no power to condone the delay in filing a reference application. The Supreme Court considered the provisions of the Central Excise Act relating to Departmental appeals and applications and the power of the adjudicating authorities, including the Tribunal to condone the delay. It noticed that in some cases unlimited power was given whereas in other cases limited or no power was given. According to the Supreme Court on a consideration of the entire above provisions the Legislature had expressed the intention that the High Court had no power to condone the delay. 13. Important passages from the above judgment of the Supreme Court are as follows (page 458) : "In the earlier part of our order, we have adverted to Chapter VI-A of the Act which provides for appeals and revisions to various authorities. Though Parliament has specifically provided an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d law that it is the duty of the court to respect the legislative intent and by giving a liberal interpretation, limitation cannot be extended by invoking the provisions of section 5 of the Act." 14. The above decision of the Supreme Court has been followed by various High Courts not only with regard to the power of the High Court to condone delay under the Central Excise Act, 1944 but also with regard to its powers to do so under the Income-tax Act, 1961, on the reasoning that the appeal provisions to the High Court are identical in the income-tax statute. So are the provisions regarding condonation of delay in matters before the departmental officers and Tribunal. 15. As far as decisions on the Income-tax Act are concerned, following the above Supreme Court decision, various High Courts have held that they have no power to condone delay in filing section 260A appeal. Reference may be made to the Division Bench decision of the Chhattisgarh High Court in Asstt. CIT v. Mahavir Prasad Verma [2009] 317 ITR 36, a Division Bench decision of the Gauhati High Court in CIT v. Williamson Tea (Assam) Ltd. [2009] 319 ITR 368 and Asstt. CIT v. Shubhash Traders/Tesla Transformers (P.) Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant period referred to in sub-section (1) or sub-section (3), if it is satisfied that there was sufficient cause for not filing the same within that period'." 18. This amendment has retrospective effect from 1st July, 2003 in case of appeals to High Court. This amendment has been made after the above Supreme Court decision. 19. In making its decision in Hongo India (P.) Ltd.'s case (supra) the Supreme Court was unable to ascertain the intention of Parliament on a plain and ordinary reading of the provision that provided for a reference application to be filed in the High Court from an order of the Tribunal, regarding the power of the High Court to condone delay. In those circumstances it considered the surrounding sections dealing with Departmental appeals and applications and on examination of those provisions the Supreme Court found that it is to be inferred that Parliament had expressly excluded the power of the High Court to condone delay. 20. Therefore, the Supreme Court had taken external aids to construction of that provision. 21. The subsequent amendment of the Central Excise Act provides in my opinion an additional external aid to construction of section 260A o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said (page 40 of 74 ITR) : "On a comparison of the provisions of the two Acts counsel on behalf of the appellant contended that a restricted meaning should be given to the word 'individual' in section 3 of the earlier Act. We see no justification for this argument. On the other hand, we are of the opinion that the language employed in the 1961 Act may be relied upon as a Parliamentary exposition of the earlier Act even on the assumption that the language employed in section 3 of the earlier Act is ambiguous. It is clear that the word 'individual' in section 3 of the 1922 Act includes within its connotation all artificial juridical persons and this legal position is made explicit and beyond challenge in the 1961 Act. In Cape Brandy Syndicate v. IRC [1921] 2 KB 403, Lord Sterndale M. R. said : 'I think it is clearly established in Attorney General v. Clarkson [1900] 1 QB 156 at pages 163, 164, that subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that subsequent legislation if it proceed upon an erroneous construction of previous legislation cannot alter that previous ..... X X X X Extracts X X X X X X X X Extracts X X X X
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