TMI Blog2005 (9) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 the Income-tax Appellate Tribunal, Allahabad, has referred the following question of law under section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), for opinion to this court: "Whether section 5 of the Indian Limitation Act is applicable to the income-tax proceedings?" Whereas in Income-tax Reference No. 275 of 1991 which relates to proceedings for imposition of penalty under section 273(c) of the Act for the assessment years 1977-78 and 1978-79, the Income-tax Appellate Tribunal has referred the following identical question of law for opinion to this court: "Whether the Tribunal was correct in law in cancelling penalty of Rs. 15,000 imposed under section 273(c) in view of the facts and circumstances of the case when the order dated January 21, 1986 in I.T.A. Nos. 2086 and 2087 (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 qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Products Ltd. [1973] 88 ITR 192 and CIT v. Naga Hills Tea Co. Ltd. [1973] 89 ITR 236 comes into play and thus we are inclined to follow the view expressed by their Lordships of the Punjab and Haryana High Court which is in favour of the assessee. Having considered all these facts, we are of the opinion that the delay of one day was rightly condoned by the Commissioner of. Income-tax (Appeals) and accordingly we uphold the order of the Commissioner of Income-tax (Appeals)." The Department sought the present reference which was accepted by the Tribunal. In the meantime, the Tribunal, vide its order, dated May 31, 1990 in I.T.A. Nos. 677 and 678 (All) of 1978-79, had upheld the order of the Commissioner of Income-tax (Appeals) cancelling the penalty of Rs. 15,000 imposed under section 273(c) following its earlier order 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot before the tribunal. It has relied upon a judgment of the Supreme Court given in the case of Sakuru v. Tanaji, AIR 1985 SC 1279. The Supreme Court has held that the appellate authority under the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act has no power to condone the delay in filing the appeal under section 5 of the Limitation Act because the Limitation Act applies only to civil courts, and not to tribunals and also because there is no provision in the Act making section 5 of the Limitation Act applicable to the proceedings under that Act. It is apt to reproduce the relevant paragraph from the judgment of the Supreme Court herein below: "After hearing both sides, we have unhesitatingly come to the conclusion that there is no substance in this appeal and that the view taken by the Division Bench 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 D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) provided that for the purpose of determining the 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 clear terms excluded. Under section 29(2) of the present Limitation Act, 1963, section 5 applies in the case of special or local law to the extent to which it is not expressly excluded by special or local law. It has been further held that even in the 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles can be read together harmoniously. Such reading does not lead to any absurdity or unworkability or frustrating the object of the Act. At any rate, in the light of the three-judge Bench decision of this court in Hukumdev Narain Yadav [1974] 2 SCC 133 and subsequently followed in Anwari Basavaraj Patil [1993] 1 SCC 636 even though the special or local law does not state in so many words expressly that section 5 of the Limitation Act is not applicable to the proceedings under those Acts, from the scheme of the Act and having regard to various provisions such express exclusion could be gathered. Thus, a conscious and intentional omission by the Legislature to apply section 5 of the Limitation Act to the proceedings under section 8 of the Act, looking to the scheme of the Act, nature of right of pre-emption and express application 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 applie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained in sections 4 to 24 'only in so far as, and to the extent to which, they are not expressly excluded by such special or local law'. This language, together with our earlier reasoning, particularly with regard to L.S. Synthetics ltd. [2004] 122 Comp Cas 185 (SC), would answer the further question raised by the appellant, namely, whether the question of exclusion of the provisions of the Limitation Act must be separately considered with reference to different provisions of a special/local Act or in connection with the provisions of the special/local Act, as a whole, by affirmation of the first alternative. We are therefore not called upon to decide whether claims either preferred for the first time before the Special Court or transferred to the Special Court under section 9A(2) would attract the provisions of sections 4 to 24 of 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 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exercised strictly in terms of section 8 and considerations of equity do not apply. It was held that the delay in filing the said application would not be condoned by invoking the provisions of section 5 of the Limitation Act. In view of very weak nature of the right of pre-emption it was held that the applicability of the provisions of section 5 of the Limitation Act read with section 29(2) of the Limitation Act stands impliedly excluded. The application for enforcement of right of pre-emption by a purchaser is required to be filed within 4 months of the date of such transfer under section 8 of the West Bengal Land Reforms Act, 1955. The provisions of the Limitation Act were made applicable by express provision in filing the appeal and revision that section 14H and section 19 of the Act. Further, it is clear that there was no specific 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 afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Data Software Research Co. Ltd. [2001] 247 ITR 207. In this case the assessee failed to produce the copy of the agreement which he was required to do so before the first day of October of the assessment year in relation to which the approval is first sought, under section 80-O of the Income-tax Act. The High Court had condoned the delay and directed the consideration of the agreements filed belatedly on the merits. The Supreme Court accepted the argument of the Revenue that there is no provision for condonation of delay in section 80-O, with the following observation: "The provisions of section 80-O mandate the production of the agreements in respect of which relief is sought, 'before the 1st day of October of the assessment year in relation to which the approval is first sought', and there is no provision for the condonation of such delay. 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 opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Parulekar v. District Magistrate, AIR 1952 SC 324. In our view section 48A as amended, has fixed a specific date for the making of an application by a simple rule of arithmetic, and there is therefore no scope for implying any 'ambiguity' at all. Further 'the fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions, equitable considerations are out of place, and the strict grammatical meaning of the words is the only safe guide." The other cases relied upon by learned standing counsel: (1) CIT v. Orissa Concrete and Allied Industries Ltd. [2003] 264 ITR 186 (Cal), (2) CIT v. Subhash Chand Goyal [2001] 251 ITR 728 (All), and (3) Mangu v. State of Rajasthan, AIR 1976 SC 176, being besides the point need no discussion. These decisions have no relevancy at all to the controversy involved in the facts of the present case. In Income-tax Reference No. 275 of 1991 the order of penalty was set 26 aside by the Tribunal on a limited ground that the provision of section 5 of the Limitation Act is applicable to an application filed under section 146(1) of the Act. We have held otherwise in the conne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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