Mrs Anita Chadha v. Commissioner Of Income Tax, Ludhiana

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.ITA No. 706 of 2009 Date of Decision: January 22, 2010 Mrs Anita Chadha …Appellant Versus Commissioner of Income Tax, Ludhiana …Respondent CORAM:HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present:Mr. Rajiv Sharma, Advocate, for the appellant. 1.To be referred to the Reporters or not?Yes2.Whether the judgment should be reported inYesthe Digest?2.Whether the judgment should be reported inYesthe Digest? M.M. KUMAR, J. This appeal filed under Section 260-A of the Income-tax Act,challenges order dated 27.2.2009, passed by the Income tax AppellateTribunal, Chandigarh Bench ‘A’, Chandigarh (for brevity, ‘the Tribunal’) inITA No. 615/Chd/2008 in respect of Assessment Year 2003-04. The onlyquestion of law 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-tax Act, 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 23 days delay in filing the appeal, has also been filed. 3.The aforesaid question is no longer res integra as Hon’ble the 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 anappeal and reference to the High Court should be made within180 days only from the date of communication of the decision ororder. In other words, the language used in other provisionsmakes the position clear that the legislature intended the appel-late authority to entertain the appeal by condoning the delay onlyup to 30 days after expiry of 60 days which is the preliminarylimitation period for preferring an appeal. In the absence of anyclause condoning the delay by showing sufficient cause after theprescribed period, there is complete exclusion of Section 5 of theLimitation Act. The High Court was, therefore, justified in hold-ing that there was no power to condone the delay after expiry ofthe 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 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-sectionshall be sent after the expiry of one year from the end ofthe financial year in which the return is made.”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.”after 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 wherever the 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 IndiaPrivate 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 23 days delay in filingthe appeal is dismissed. Consequently, the appeal also fails and the same isdismissed being time barred. January 22, 2010 Pkapoor (JITENDRA CHAUHAN)JUDGE