TMI Blog2009 (9) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... 78 of 2002, 11 of 2001 With 5 and 6 of 2003) Petitioner's Counsels - Shambhu Chopra , Bharatji Agarwal and R.K. Upadhaya Respondent's Counsel - V.B. Upadhyay , Sr. Adv. , Shri Hanuman Upadhyay and Adv. JUDGMENT The judgment of the court was delivered by Hon'ble C.K. Prasad, C.J. - As identical question of law is involved in all these appeals, they have been heard together and are being disposed off by this common judgment. All these appeals have been preferred under Section 260A (2) of the Income Tax Act, 1961 (hereinafter referred to as the ''Act 1961') by the Revenue as well as by the Assessee. It provides for filing of an appeal in the form of a memorandum of appeal within 120 days from the date on which the order appealed against is received by the Assessee or the Chief Commissioner or the Commissioner. It is an admitted position that all these appeals have been preferred beyond the period of limitation as provided under the aforesaid Section and the appellants have filed applications for extension of prescribed period of limitation and for admission of appeals after condoning the delay. When said applications for condonation of delay were placed for co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n prescribed, the provisions contained in Sections 4 to 24 of the Act 1963 shall apply only insofar as and to the extent they are not expressly excluded by such special or local law. In view of aforesaid, the question which, at the first instance, falls for consideration is as to whether an appeal preferred under Section 260A (2) of the Act 1961 comes within the ambit of Section 29 (2) of the Act 1963 so as to include the application of Sections 4 to 24 of the Act 1963. To come within the ambit of Section 29 (2) of the Act 1963, three main ingredients are required to be satisfied, namely:- (1) The special or local law must provide for a period of limitation for any suit or appeal. (2) The said period of limitation must be different from the period prescribed by the Schedule to the Act 1963. (3) The application of Sections 3 and 4 to 24 of the Act 1963 has not been expressly excluded by the special law. It is common ground that the Act 1961 has provided for a period of limitation for filing an appeal and the said period of limitation is different from the period prescribed by the Schedule to the Act 1963. It is relevant here to state that Section 260A of the Act 1961 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d two conditions are satisfied S. 29 (2) on its own force will get attracted to appeals filed before appellate authority under S. 18 of the Rent Act. When Section 29 (2) applies to appeals u/S. 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that Section, all the provisions of Ss. 4 to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of S. 5 of the Limitation Act to appeals filed before appellate authority under S. 18 of the Act. Consequently, all the legal requirements for applicability of S. 5 of the Limitation Act to such appeals in the light of S. 29 (2) of Limitation Act can be said to have been satisfied. ..." (Underlining ours) Submission of the counsel for the appellants is that neither Section 260A of the Act 1961 nor any other provision thereof expressly excludes the applicability of Sections 4 to 24 of the Act 1963 and, therefore, Section 29 of the Act 1963 will apply and once it is held so, Section 5 of the Act 1963 would be available for extending the time for filing appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, an appeal preferred under Section 260A of the Act 1961 cannot be admitted by extending the period of limitation. In our opinion, for express exclusion of Sections 4 to 24 of the Act 1963, the special law need not provide for its exclusion in the provision providing for appeal itself and the express exclusion can be inferred from the scheme of the Act. We are further of the opinion that in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Act 1963 by an express provision, 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 the scheme of the special law excludes their operation. One can come to the conclusion that when a special law does not provide for application of Section 5 of the Act 1963, it is expressly excluded. A reference in this connection can be made to a decision of the Supreme Court in the case of Hukumdev Narain Yadav Vs. Lalit Narain Mishra , (1974) 2 SCC 133, in which it has been held as follows:- "... Even assuming that where a period of limitation has not been fixed for election petitions in the Schedule to the Lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 81. Again Section 6 of the Limitation Act which provides for the extension of the period of limitation till after the disability in the case of a person who is either a minor or insane or an idiot is inapplicable to an election petition. Similarly, Sections 7 to 24 are in terms inapplicable to the proceedings under the Act, particularly in respect of the filing of election petitions and their trial." Yet another decision of the Supreme Court in the case of The Commissioner of Sales Tax, Uttar Pradesh, Lucknow Vs. M/s. Parson Tools and Plants, Kanpur, AIR 1975 SC 1039, lends support to aforesaid view, which would be evident from paragraphs 12 and 13 of the judgment, which read as follows:- "12. If the legislature willfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation by analogy or implication, something what it thinks to be a general principle of justice and equity. " To do so"--(at p. 65 in Prem Nath L. G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the special law here in this case is Central Excise Act. 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 considered view, that 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 exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, 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. The scheme of the Central Excise Act, 1944 support the conclusion that the time limit prescribed under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation on an application made before the expiry of the period. In the background aforesaid, when one considers the provision of Section 260A of the Act 1961 providing for appeal to the High Court, it is evident that no such power has been given to the Court. Absence of any provision in Section 260A of the Act, 1961 conferring jurisdiction to condone the delay in filing the appeal and in view of the scheme of the Act, referred to above, in our opinion, provisions of Sections 4 to 24 of the Act, 1963 would not be applicable in the case of an appeal preferred under Section 260A of the Act, 1961. Now referring to the decision of this Court in the case of Harbir Singh (supra), same in no way supports the plea of the appellants. Various provisions of the Act 1961, which we have referred to above, signify exclusion of the Act 1963. True it is that the Full Bench of the Bombay High Court in the case of Velingkar Brothers (supra) has held that Section 5 of the Act 24 of 1963 shall apply in case of appeals filed under Section 260A of the Act 1961, but in view of the decision of the Supreme Court in the case of Hongo India (Pvt.) Ltd. (supra), it is difficult to follow its reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. (2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the case may be. (3) Where an application has been made under sub-rule (1), the Court shall not make an order for the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under Rule 11, decide to hear the appeal." Sub-rule (1) of Rule 3-A of Order XLI of the Code provides for procedure for presenting an appeal after the expiry of period of limitation and it contemplates filing of an application supported by an affidavit setting forth the facts to satisfy the Court about the sufficient cause for not preferring the appeal within time. Sub-rule (2) thereof provides for notice to the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period of limitation is provided only under Art. 116 of the Limitation Act, 1963 in respect of appeals and it cannot be said that O.41, Rule 3-A gives any additional right to litigants to claim condonation. Moreover, condonation of delay is not a matter of right. The litigant who comes to court after the prescribed period of limitation is bound to satisfy the Court that he has sufficient cause for the delay." We respectfully agree with the aforesaid observation. To put the record straight, it is relevant here to state that it has also been contended on behalf of the appellants that principles of natural justice demand that in case of the appellants showing sufficient cause, the appeal deserves to be heard, though presented beyond the period of limitation. We are of the opinion that appeal has to be presented according to the procedure prescribed. The remedy of appeal is a statutory right and hence it has to be presented in accordance with the procedure, the manner and within the time prescribed by the Statute, and the principles of natural justice are not remotely attracted so far as the question of limitation is concerned. Having held that the delay in filing the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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