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2007 (1) TMI 112 - HC - Income TaxApplication for the condonation of delay - delay of 11 days - Whether section 5 of the Limitation Act, 1963, shall apply in case of an appeal filed u/s 260A of the Income-tax Act, 1961 - HELD THAT:- That the Legislature has used the words "shall be filed" in sub-section (2) means that the limitation for filing the appeal is as provided therein but that does not make section 29(2) of the Limitation Act, 1963, inapplicable. The High Court being the superior court, the power to condone the delay in filing the appeal must be read to be existent, more so by virtue of section 29(2) of the Limitation Act, unless there is clear indication of its exclusion by implication. The use of the word "shall" and the longer period of limitation (120 days) are not indicators of such exclusion. Nor from the position that section 260A is silent about the applicability of section 29(2), can any justifiable inference be drawn for inapplicability of that provision. What is obvious need not be stated and, therefore, the Legislature may have thought fit that it was not necessary to express specifically about the power of the High Court to condone the delay in view of existence of section 29(2). When the statute is silent, the presumption is not drawn automatically about the exclusion of section 29(2) or for that matter section 5 of the Limitation Act. In our thoughtful consideration of the whole matter there is nothing to indicate that the application of section 29(2) is excluded except providing a special limitation. Section 260A does not necessarily imply the exclusion of sections 4 to 24 of the Limitation Act. Thus, there is an overwhelming line of cases holding section 5 of the Limitation Act applicable to the matters in appeal and reference applications to the High Court under the Indian Income-tax Act, the Customs Act and the Bombay Sales Tax Act. Our conclusion in this regard is in line with these cases. We shall finally conclude thus: Section 5 of the Limitation Act shall apply in case of the appeals filed u/s 260A of the Income-tax Act, 1961.
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