Commissioner Of Income Tax-Ii, Chandigarh v. M/S Council For Citrus & Agri Juicing In Punjab, Chandigarh

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH.Date of Decision: March 2, 2010 I.T.A. No. 112 of 2010Mrs. Amrita Chadha …AppellantVersusCommissioner of Income Tax, Ludhiana…RespondentI.T.A. No. 114 of 2010Commissioner of Income Tax-III, Ludhiana…AppellantVersusM/s Nahar Exports Ltd., Ludhiana…RespondentI.T.A. No. 115 of 2010Commissioner of Income Tax-III, Ludhiana…AppellantVersusM/s Nahar Spinning Mills Ltd., Ludhiana…RespondentI.T.A. No. 116 of 2010Commissioner of Income Tax-II, Chandigarh…AppellantVersusM/s Viticulture Council of Punjab, Chandigarh…RespondentI.T.A. No. 117 of 2010Commissioner of Income Tax-II, Chandigarh…Appellant VersusM/s Council for Value Added Horticulture in Punjab, Chandigarh …Respondent I.T.A. No. 118 of 2010 Commissioner of Income Tax-II, Chandigarh …Appellant Versus M/s Council for Citrus & Agri Juicing in Punjab, Chandigarh …Respondent CORAM:HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present:Mr. Rajiv Sharma, Advocate,for Mr. S.K. Mukhi, Advocate, (in ITA No. 112 of 2010), Mr. Vivek Sethi, Advocate,(in ITA Nos. 114 & 115 of 2010),Ms. Urvashi Dhugga, Advocate,(in ITA Nos. 116 to 118 of 2010),for the appellant(s). 1.To be referred to the Reporters or not? 2.Whether the judgment should be reported inthe Digest? M.M. KUMAR, J. By this order we propose to dispose of ITA Nos. 112 and114 to 118 of 2010, which have been filed under Section 260-A of theIncome-tax Act, 1961 (for brevity, ‘the Income-tax Act’) challengingvarious orders passed by the Income tax Appellate Tribunal,Chandigarh Bench ‘A’, Chandigarh (for brevity, ‘the Tribunal’). Theonly question of law which arises for determination of this Court inthese appeals is as under: “Whether the delay in filing of the appeal beyond theperiod of 120 days prescribed by Section 260-A(2)(a) ofthe Income-tax Act, 1961, could be condoned by entertaining an application under Section 5 of theLimitation Act, 1963?” 2.Along with the appeals applications invoking theprovisions of Section 5 of the Limitation Act, 1963 (for brevity, theLimitation Act’), seeking condonation of delay in filing the appeals,have also been filed. 3.The aforesaid question is no longer res integra asHon’ble the Supreme Court in the case ofCommissioner of Customs & Central Excisev. Hongo India (P) Ltd., (2009) 5 SCC 791, whileinterpreting the provisions of the Central Excise Act, 1944 (forbrevity, ‘the Excise Act’) has laid down that it is a complete code byitself which alone is to govern the matters provided by that Act. Ithas further been held that in the presence of special law providing forlimitation with regard to filing of appeal, the Court could examine theextent of exclusion of Limitation Act by such special law. Onexamination of the language used in Sections 35, 35-B, 35-EE, 35-Gand 35-H of the Excise Act, it has been concluded in paras 32 and 33that the provisions of Limitation Act were not to apply. The viewexpressed by Hon’ble the Supreme Court in the aforesaid paras readsthus:- “32.As pointed out earlier, the language used inSections 35, 35B, 35EE, 35G and 35H makes theposition clear that an appeal and reference to the HighCourt should be made within 180 days only from the dateof communication of the decision or order. In other words, the language used in other provisions makes theposition clear that the legislature intended the appellateauthority to entertain the appeal by condoning the delayonly up to 30 days after expiry of 60 days which is thepreliminary limitation period for preferring an appeal. Inthe absence of any clause condoning the delay byshowing sufficient cause after the prescribed period,there is complete exclusion of Section 5 of the LimitationAct. The High Court was, therefore, justified in holdingthat there was no power to condone the delay after expiryof the prescribed period of 180 days. words, the language used in other provisions makes theposition clear that the legislature intended the appellateauthority to entertain the appeal by condoning the delayonly up to 30 days after expiry of 60 days which is thepreliminary limitation period for preferring an appeal. Inthe absence of any clause condoning the delay byshowing sufficient cause after the prescribed period,there is complete exclusion of Section 5 of the LimitationAct. The High Court was, therefore, justified in holdingthat there was no power to condone the delay after expiryof the prescribed period of 180 days. 33.Even otherwise, for filing an appeal to theCommissioner, and to the Appellate Tribunal as well asrevision to the Central Government, the legislature hasprovided 60 days and 90 days respectively, on the otherhand, for filing an appeal and reference to the High Courtlarger period of 180 days has been provided with toenable the Commissioner and the other party to avail thesame. We are of the view that the legislature providedsufficient time, namely, 180 days for filing reference tothe High Court which is more than the period prescribedfor an appeal and revision.” 4.When we examine the provisions of the Income-tax Act,the position is no different than the one prevailing under the ExciseAct. In that regard it would be profitable to refer to the un-numbered second proviso of Section 143(1), Section 249(3) and Section 260A(2)(a) of the Income-tax Act, which reads thus: Second un-numbered proviso of Section 143(1) “Provided further that no intimation under thissub-section shall be sent after the expiry of oneyear from the end of the financial year in which thereturn is made.” Section 249(3) “The Commissioner (Appeals) may admit anappeal after the expiration of the said period if heis satisfied that the appellant had sufficient causefor not presenting it within that period.” Section 260A(2)(a) “Appeal to High Court. 260A(2)The Chief Commissioner or theCommissioner or an assessee aggrieved by anyorder passed by the Appellate Tribunal may file anappeal to the High Court and such appeal underthis sub-section shall be- (a)filed within one hundred and twenty daysfrom the date on which the order appealedagainst his received by the assessee or theChief Commissioner or Commissioner;”from the date on which the order appealedagainst his received by the assessee or theChief Commissioner or Commissioner;” 5.A perusal of above quoted provisions would show thatwherever the legislature desires to provide for condonation of delay, aspecific provision has been made in the Act and, therefore, if no suchprovision has been made, then no application under Section 5 of theLimitation Act could be filed as the Act itself is a complete code likeExcise Act, which has been considered by their Lordships’ ofHon’ble the Supreme Court in Hongo India Private Limited(supra). The reasoning adopted by Hon’ble the Supreme Court in thecase of Hongo India Private Limited (supra) is fully applicable tothe question raised in the present appeals. Therefore, we are of theview that the applications seeking condonation of delay filed underSection 5 of the Limitation Act cannot be accepted. 6.For the reasons aforementioned, the applications filedunder Section 5 of the Limitation Act seeking condonation of delay infiling the appeals are dismissed. Consequently, these appeals also failand the same are dismissed being time barred. The office is directed to place a photocopy of this orderon the file of each appeal. (M.M. KUMAR)JUDGE March 2, 2010 (JITENDRA CHAUHAN) JUDGE Pkapoor