The Shergarh Co-Op L&C Society Ltd v. The Income Tax Officer, Ward Ii(2), Muktsar

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. ITA No. 654 of 2009 (O&M) Date of Decision: January 12, 2010 The Shergarh Co-op L&C Society Ltd. …Appellant Versus The Income Tax Officer, Ward II(2), Muktsar …Respondent CORAM:HON'BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JITENDRA CHAUHAN Present:Mr. K.L. Goyal, Senior Advocate, withMr. Manoj Rohilla, Advocate,for the appellant. 1.To be referred to the Reporters or not?Yes2.Whether the judgment should be reported inYesthe Digest? M.M. KUMAR, J. This order shall dispose of ITA Nos. 654, 655 and 656 of2009, filed under Section 260-A of the Income-tax Act, challengingcommon order dated 27.2.2009, passed by the Income tax AppellateTribunal, Amritsar Bench, Amritsar (for brevity, ‘the Tribunal’) inITA Nos. 355 to 357 (ASR) 2007 in respect of Assessment Year2002-03, dismissing the appeals filed by the Shergarh Co-op L&CSociety Ltd., the Udekaran Co-op L&C Society Ltd. and theMehrajwala Co-op L&C Society Ltd. on the ground of being barredby limitation. The only question of law which arises fordetermination 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) ofthe Income-tax Act, 1961, could be condoned byentertaining an application under Section 5 of theLimitation Act, 1963?” 2.In all the appeals there is an application invoking theprovisions of Section 5 of the Limitation Act, 1963 (for brevity, theLimitation Act’), seeking condonation of delay of 74 days in filingthe appeal. 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 the posi-tion clear that an appeal and reference to the High Courtshould be made within 180 days only from the date of communication of the decision or order. In other words,the language used in other provisions makes the positionclear that the legislature intended the appellate authorityto entertain the appeal by condoning the delay only up to30 days after expiry of 60 days which is the preliminarylimitation period for preferring an appeal. In the absenceof any clause condoning the delay by showing sufficientcause after the prescribed period, there is complete exclu-sion of Section 5 of the Limitation Act. The High Courtwas, therefore, justified in holding that there was nopower to condone the delay after expiry of the prescribedperiod 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 to en-able 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.” 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 to en-able 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,1961 (for brevity, ‘the Act’), the position is no different than the oneprevailing under the Excise Act. In that regard it would be profitable to refer to the un-numbered second proviso of Section 143(1), Section249(3) and Section 260A(2)(a) of the Act, which reads thus: Second un-numbered proviso of Section 143(1) of theAct “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.”appeal 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 the Com-missioner or an assessee aggrieved by any orderpassed by the Appellate Tribunal may file an ap-peal to the High Court and such appeal under thissub-section shall be-missioner or an assessee aggrieved by any orderpassed by the Appellate Tribunal may file an ap-peal to the High Court and such appeal under thissub-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;” 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 (su-pra). 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 application(s) seeking condonation of delay filed underSection 5 of the Limitation Act cannot be accepted.5.For the reasons aforementioned, the application(s) filedunder Section 5 of the Limitation Act seeking condonation of delay infiling the appeals are dismissed. Consequently, the appeals also failand are dismissed being time barred. (M.M. KUMAR)JUDGE January 12, 2010 (JITENDRA CHAUHAN)JUDGE Pkapoor