ANITA CHADHA V. CIT, LUDHIANA

ITA/706/2009

AI Insights

The case involves an appeal by Mrs. Anita Chadha against the Commissioner of Income Tax, Ludhiana, challenging an order by the Income Tax Appellate Tribunal. The primary legal question was whether a delay in filing the appeal beyond the prescribed 120 days could be condoned under Section 5 of the Limitation Act, 1963. The court referenced a Supreme Court decision in Commissioner of Customs & Central Excise v. Hongo India (P) Ltd., which established that specific laws like the Excise Act and by extension, the Income-tax Act, exclude the application of the Limitation Act for condoning delays beyond the prescribed periods. The court concluded that the Income-tax Act is a self-contained code regarding the limitation for filing appeals, and thus, the delay could not be condoned.

• Counselvise Citation: [2010] 140 COUNSELVISE.COM (IT) 746393 (HC-CHANDIGARH)
• Appeal Type: Others
• Pronouncement Date: 22-01-2010
• Assessment Year: misc
• Other Referred Cases: Commissioner of Customs & Central Excise v. Hongo India (P) Ltd.
• Laws Referred To: Income-tax Act, 1961, Limitation Act, 1963, Central Excise Act, 1944
• Result in Favour of: Revenue
• Court: HIGH COURT
• Assessee Lawyers: RAJIV SHARMA
• Keywords: Condonation of delay; Income Tax; Limitation; Special Law; Complete code
• Section: 143(1); 5; 249(3); 260-A

Judgement Text

"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? Yes 2. Whether the judgment should be reported in the Digest? Yes 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 Appellate Tribunal, Chandigarh Bench ‘A’, Chandigarh (for brevity, ‘the Tribunal’) in ITA No. 615/Chd/2008 in respect of Assessment Year 2003-04. The only question 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 application under Section 5 of the Limitation Act, 1963?” 2. Along with the appeal an application invoking the provisions of Section 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 ITA No. 706 of 2009 (O&M) Supreme Court in the case of Commissioner of Customs & Central Excise v. Hongo India (P) Ltd., (2009) 5 SCC 791, while interpreting the provisions of the Central Excise Act, 1944 (for brevity, ‘the Excise Act’) has laid down that it is a complete code by itself which alone is to govern the matters provided by that Act. It has further been held that in the presence of special law providing for limitation with regard to filing of appeal, the Court could 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 and 35-H of the Excise Act, it has been concluded in paras 32 and 33 that the provisions of Limitation Act were not to apply. The view expressed by Hon’ble the Supreme Court in the aforesaid paras reads thus:- “ 32. As pointed out earlier, the language used in Sections 35, 35B, 35EE, 35G and 35H makes the position clear that an appeal and reference to the High Court should 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 position clear that the legislature intended the appel- late authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in hold- ing that there was no power to condone the delay after expiry of the prescribed period of 180 days. 2 ITA No. 706 of 2009 (O&M) 33. Even otherwise, for filing an appeal to the Commis- sioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days 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 to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for 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 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 Section 260A(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 of the financial year in which the return is made.” Section 249(3) “ The Commissioner (Appeals) may admit an appeal after the expiration of the said period if he is satisfied that the appellant had sufficient cause for not presenting it within that period.” Section 260A(2)(a) 3 ITA No. 706 of 2009 (O&M) “Appeal to High Court. 260A(2) The Chief Commissioner or the Commis- sioner or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be- (a) filed within one hundred and twenty days from the date on which the order appealed against his re- ceived by the assessee or the Chief Commissioner or Commissioner;” 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 been made, then no application under Section 5 of the Limitation Act could be filed 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 Supreme Court 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 view that the application seeking condonation of delay filed under Section 5 of the Limitation 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 filing the appeal is dismissed. Consequently, the appeal also fails and the same is dismissed being time barred. (M.M. KUMAR) JUDGE 4 ITA No. 706 of 2009 (O&M) (JITENDRA CHAUHAN) January 22, 2010 JUDGE Pkapoor 5 "