TMI Blog2011 (8) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... nd scheme of the special law exclude their operation - Held that: - We, consequently, dispose of this application by clarifying our above observation that we never intended to direct the Assessing Officer to bring those transactions within regular assessment after the expiry of the period of limitation prescribed under the Income-tax Act by taking aid of section 14 of the Limitation Act which is not even applicable. - 218 OF 2001 - - - Dated:- 11-8-2011 - BHASKAR BHATTACHARYA, RAGHUNATH BHATTACHARYA, JJ. N.K. Poddar, Vineet Tibrewal and Dilip Kumar Kadel for the Appellant. Sailen Dutt and Aniket Mitra for the Respondent. JUDGMENT Bhaskar Bhattacharya, J. This is an application for review of an order dated 1-7-2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questions formulated by the Division Bench. According to the assessee, the regular assessment proceedings under sections 143/147/148 of the Act were already barred by limitation as contained in section 149(1) of the Act and as such, the aforesaid observation should be deleted. 5. Mr. Poddar, the learned Senior Advocate appearing on behalf of the assessee, submitted before us that taking advantage of the aforesaid remark, the Assessing Officer now may start fresh assessment by treating the same as a direction contained in the order. Mr. Poddar, therefore, prays for deletion of the aforesaid observation or clarification of the same by making it clear that the said remark will not enable the Assessing Officer to start fresh regular assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 260A of the Act, there was no necessity of considering whether the transactions in question could be assessed under regular assessment. 9. Our aforesaid observation was not meant for giving direction upon the Assessing Officer because there was neither any scope of passing such direction for effective disposal of the dispute nor could we pass any such direction while answering questions formulated by the Division Bench admitting the appeal. As pointed out by a Division Bench of this Court in the case of Goombira Tea Co. (P.) Ltd v. ITO [1980] 125 ITR 260/[1981] 5 Taxman 78, the expression "finding" and "direction" contained in section 153(3) of the Act are limited in meaning. A finding given in an appeal, revision or reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions 4 to 24 of the Limitation Act would be applicable. 12. With great respect to Their Lordships, we are unable to accept the said proposition for the following reasons: Sub-section (7) of section 260A merely provides that the save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908, relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section. In the Code of Civil Procedure, the provisions contained in sections 100-103 are the provisions relating to appeals to High Court and the provisions of Order 41 are the procedural part of section 96 which is the general provision of appeal. Therefore, the Legislature intended that the provisions contained in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra) was not drawn to the said decision given on the Reference holding that Order 41 Rule 3A does not confer power of condonation of delay and thus, the said decision is not a valid precedent. It is now a settled law that in case of conflict of opinion between two Benches of the equal strength, the former prevails and thus, we propose to accept the view taken in the case of Egra Thana Marketing Co-operative Society Ltd. (supra) on the proposition that Order 41 Rule 3A of the Code does not confer any power of condonation of delay. 13. We are also unable to accept the other finding given in the case of R.K. B.K. Ltd. (supra) that sections 4 to 24 of the Limitation Act apply to an appeal under section 260A of the Act in view of the decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court." [Emphasis supplied]. In that case, the Supreme Court was considering whether in respect of the proceedings under the Central Excise Act, those were excluded from the operation of the Limitation Act. 14. So far as the Income-tax Act is concerned, its scope and the nature has been described by the Supreme Court in the case of Rao Bahadur Ravulu Subba Rao v. CIT [1956] 30 ITR 163 thus: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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