Indian Roadlines v. Commissioner Of Income Tax-2, Jalandhar

CHANDIGARH. ITA No. 528 of 2009 Date of Decision: February 10, 2010 Indian Roadlines Versus Commissioner of Income Tax-2, Jalandhar …Appellant …Respondent CORAM:HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present:Mr. Ravish Sood, Advocate, and Mr. Maninder Arora, Advocate, for the appellant. Mr. Vivek Sethi, Advocate,for the respondent. 1.To be referred to the Reporters or not?2.Whether the judgment should be reported inthe Digest? M.M. KUMAR, J. This appeal filed under Section 260-A of the Income-tax Act,challenges order dated 31.12.2008, passed by the Income Tax AppellateTribunal, Amritsar Bench, Amritsar (for brevity, ‘the Tribunal’) in ITA No.425(ASR)/2008 in respect of Assessment Year 2005-06. The only question oflaw which arises for determination of this Court is as under: “Whether the delay in filing of the appeal beyond the period of 120 days prescribed by Section 260-A(2)(a) of the Income-taxAct, 1961, could be condoned by entertaining an applicationunder Section 5 of the Limitation Act, 1963?” 2.Along with the appeal an application invoking the provisions ofSection 5 of the Limitation Act, 1963 (for brevity, the Limitation Act’),seeking condonation of 2 days delay in filing the appeal, has also been filed. Supreme Court in the case ofCommissioner of Customs & Central Excisev. Hongo India (P) Ltd., (2009) 5 SCC 791, while interpreting theprovisions of the Central Excise Act, 1944 (for brevity, ‘the Excise Act’) haslaid down that it is a complete code by itself which alone is to govern thematters provided by that Act. It has further been held that in the presence ofspecial law providing for limitation with regard to filing of appeal, the Courtcould examine the extent of exclusion of Limitation Act by such special law.On examination of the language used in Sections 35, 35-B, 35-EE, 35-G and35-H of the Excise Act, it has been concluded in paras 32 and 33 that theprovisions of Limitation Act were not to apply. The view expressed byHon’ble the Supreme Court in the aforesaid paras reads thus:- “32.As pointed out earlier, the language used in Sections35, 35B, 35EE, 35G and 35H makes the position clear that an appeal and reference to the High Court shouldbe made within 180 days only from the date of communicationof the decision or order. In other words, the language used inother provisions makes the position clear that the legislature in-tended the appellate authority to entertain the appeal by condon-ing the delay only up to 30 days after expiry of 60 days which isthe preliminary limitation period for preferring an appeal. In theabsence of any clause condoning the delay by showing sufficientcause after the prescribed period, there is complete exclusion ofSection 5 of the Limitation Act. The High Court was, therefore,justified in holding that there was no power to condone the delayafter expiry of the prescribed period of 180 days. 33.Even otherwise, for filing an appeal to the Commis-sioner, and to the Appellate Tribunal as well as revision to theCentral Government, the legislature has provided 60 days and 90days respectively, on the other hand, for filing an appeal and ref-erence to the High Court larger period of 180 days has been pro-vided with to enable the Commissioner and the other party toavail the same. We are of the view that the legislature providedsufficient time, namely, 180 days for filing reference to the HighCourt which is more than the period prescribed for an appeal andrevision.” 4.When we examine the provisions of the Income-tax Act, 1961(for brevity, ‘the Act’), the position is no different than the one prevailing un-der the Excise Act. In that regard it would be profitable to refer to the un-numbered second proviso of Section 143(1), Section 249(3) and Section260A(2)(a) of the Act, which reads thus: Second un-numbered proviso of Section 143(1) of the Act “Provided further that no intimation under this sub-section 4.When we examine the provisions of the Income-tax Act, 1961(for brevity, ‘the Act’), the position is no different than the one prevailing un-der the Excise Act. In that regard it would be profitable to refer to the un-numbered second proviso of Section 143(1), Section 249(3) and Section260A(2)(a) of the Act, which reads thus: Second un-numbered proviso of Section 143(1) of the Act “Provided further that no intimation under this sub-section shall be sent after the expiry of one year from the end ofthe financial year in which the return is made.”Section 249(3) “The Commissioner (Appeals) may admit an appealafter the expiration of the said period if he is satisfied thatthe appellant had sufficient cause for not presenting itwithin that period.” Section 260A(2)(a) “Appeal to High Court. 260A(2)The Chief Commissioner or the Commis-sioner or an assessee aggrieved by any order passed by theAppellate Tribunal may file an appeal to the High Courtand such appeal under this sub-section shall be- (a)filed within one hundred and twenty days from thedate on which the order appealed against his re-ceived by the assessee or the Chief Commissioner orCommissioner;”date on which the order appealed against his re-ceived by the assessee or the Chief Commissioner orCommissioner;” 5.A perusal of above quoted provisions would show that whereverthe legislature desires to provide for condonation of delay, a specific provi-sion has been made in the Act and, therefore, if no such provision has beenmade, then no application under Section 5 of the Limitation Act could befiled as the Act itself is a complete code like Excise Act, which has been con-sidered by their Lordships’ of Hon’ble the Supreme Court in Hongo India Private Limited (supra). The reasoning adopted by Hon’ble the SupremeCourt in the case of Hongo India Private Limited (supra) is fully applica-ble to the question raised in the present appeal. Therefore, we are of the viewthat the application seeking condonation of delay filed under Section 5 of theLimitation Act cannot be accepted. 6.For the reasons aforementioned, the application filed under Sec-tion 5 of the Limitation Act seeking condonation of 2 days delay in filing theappeal is dismissed. Consequently, the appeal also fails and the same is dis-missed being time barred. (M.M. KUMAR)JUDGE (JITENDRA CHAUHAN) February 10, 2010 Pkapoor