Shergarh Co-op L&C Society Ltd. V. The Income Tax Officer, Ward II(2), Muktsar

ITA/654/2009

AI Insights

The case involves the Shergarh Co-op L&C Society Ltd. appealing against the decision of the Income Tax Appellate Tribunal, Amritsar, which dismissed their appeals as being barred by limitation. The primary legal question was whether the delay in filing the appeal beyond the prescribed period of 120 days could be condoned under Section 5 of the Limitation Act, 1963. The Supreme Court's precedent in Commissioner of Customs & Central Excise v. Hongo India (P) Ltd. was cited, which established that specific laws like the Excise Act and by extension, the Income-tax Act, do not allow for the application of the Limitation Act to extend the time for filing appeals unless explicitly stated.

• Counselvise Citation: [2010] 140 COUNSELVISE.COM (IT) 805327 (HC-CHANDIGARH)
• Appeal Type: Others
• Pronouncement Date: 12-01-2010
• 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: K L GOYAL; MANOJ ROHILLA
• Keywords: Appeal Dismissal; Condonation of delay; Income Tax; Limitation Period
• Section: 5; 260-A(2)(a)

Judgement Text

"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, with Mr. Manoj Rohilla, 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 order shall dispose of ITA Nos. 654, 655 and 656 of 2009, filed under Section 260-A of the Income-tax Act, challenging common order dated 27.2.2009, passed by the Income tax Appellate Tribunal, Amritsar Bench, Amritsar (for brevity, ‘the Tribunal’) in ITA Nos. 355 to 357 (ASR) 2007 in respect of Assessment Year 2002-03, dismissing the appeals filed by the Shergarh Co-op L&C Society Ltd., the Udekaran Co-op L&C Society Ltd. and the Mehrajwala Co-op L&C Society Ltd. on the ground of being barred by limitation. 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 ITA No. 654 of 2009 (O&M) 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. In all the appeals there is an application invoking the provisions of Section 5 of the Limitation Act, 1963 (for brevity, the Limitation Act’), seeking condonation of delay of 74 days in filing the appeal. 3. The aforesaid question is no longer res integra as Hon’ble the 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 posi- tion clear that an appeal and reference to the High Court should be made within 180 days only from the date of 2 ITA No. 654 of 2009 (O&M) communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate 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 exclu- sion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days. 33. Even otherwise, for filing an appeal to the Commissioner, 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 reference to the High Court larger period of 180 days has been provided with to en- able 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 under the Excise Act. In that regard it would be profitable 3 ITA No. 654 of 2009 (O&M) 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) “Appeal to High Court. 260A(2) The Chief Commissioner or the Com- missioner or an assessee aggrieved by any order passed by the Appellate Tribunal may file an ap- peal 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 received by the assessee or the Chief Commissioner or Commissioner;” 4 ITA No. 654 of 2009 (O&M) A perusal of above quoted provisions would show that wherever the legislature desires to provide for condonation of delay, a specific provision 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 considered by their Lordships’ of Hon’ble the Supreme Court in Hongo India Private Limited (su- pra). The reasoning adopted by Hon’ble the Supreme Court in the case of Hongo India Private Limited (supra) is fully applicable to the question raised in the present appeals. Therefore, we are of the view that the application(s) seeking condonation of delay filed under Section 5 of the Limitation Act cannot be accepted. 5. For the reasons aforementioned, the application(s) filed under Section 5 of the Limitation Act seeking condonation of delay in filing the appeals are dismissed. Consequently, the appeals also fail and are dismissed being time barred. (M.M. KUMAR) JUDGE (JITENDRA CHAUHAN) January 12, 2010 JUDGE Pkapoor 5 "