High Court Of Calcutta
CIT vs. Anandilal Poddar & Sons Ltd.
Section 260A, Limitation Act, 1963, ss. 5 & 29
Asst. Years 1991-92, 1995-96
D.K. Seth & Maharaj Sinha, JJ.
GA No. 3894 of 2004 & IT Appeal No. 735 of 2004
25th July, 2005
Counsel Appeared
P.K. Bhowmick, for the Appellant : Vivek Murarka, for the Respondent
JUDGMENT
By the court :
It is pointed out that this appeal covers two assessment years. The Court fee paid is to be accepted in respect of the first assessment year. The appellant shall put in additional Court fee for the second assessment year within a period of eight weeks. In default, the appeal shall be treated as against the asst. yr. 1991-92 and so far as the asst. yr. 1995-96 is concerned, the same shall stand dismissed in default of putting in the deficit Court fees within the period stipulated above. Appeal under s. 260A of IT Act : Application of the Limitation Act : Whether excluded :
2. This is an application under s. 5 of the Limitation Act for condonation of delay in preferring the appeal by the Department by 137 days. The learned counsel for the respondent took a novel point, that s. 5 of the Limitation Act has no manner of application in an appeal under s. 260A of the IT Act, 1961 in view of the provisions contained in s. 29 of the Limitation Act, 1963. According to him, the IT Act is admittedly a special Act. A special period of limitation has been prescribed in sub-s. (2) of s. 260A. In the absence of any specific provision referring to the Limitation Act, though subs. (7) refers to the CPC, the appeals under which are governed by art. 116 of the Limitation Act, then by necessary implication the application of ss. 4 to 24 of the Limitation Act is excluded. He relied on the decision in Union of India vs. Popular Construction Co. (2001) 8 SCC 470. In the said decision referring to Hukumdev Narain Yadav vs. Lalit Narain Mishra (1974) 2 SCC 133, it was held that it is not essential for the special or local law to, in terms, exclude the provisions of the Limitation Act. It is sufficient, if on a consideration of the language of its provision relating to limitation the intention to exclude can be necessarily implied. The learned counsel for the respondent attempted to explain that s. 260A having not provided for condonation of delay, as is provided in s. 256(1), by necessary implication has excluded the application of ss. 4 to 24 of the Limitation Act, being hit by s. 29 of that Act.
2.1 Learned counsel for the appellant, on the other hand, contends that there is nothing to indicate that the application of Limitation Act is excluded except providing a special limitation. According to him, the application of ss. 4 to 24 is to be excluded expressly and such express exclusion can be inferred from the scheme of the statute even by necessary implication. But the statute nowhere necessarily implies the exclusion of the application of ss. 4 to 24 of the Limitation Act.
2.2 Admittedly, the IT Act is a special Act. It expressly provides in s. 260A for a period of limitation for preferring an appeal to the High Court, which is 120 days. But the reference to art. 116 of the Limitation Act is wholly misplaced since the limitation provided therein applies to an appeal provided under the CPC. This period is substituted in respect of an appeal under s. 260A by the period prescribed in cl. (a) of sub-s. (2) thereof. This special period of limitation will prevail over and exclude the period provided in the Limitation Act for preferring an appeal. This prescription of the special period, however, does not necessarily imply that the application of ss. 4 to 24 is excluded. In order to exclude the application of ss. 4 to 24 within the meaning of s. 29 of the Limitation Act, the exclusion must be express and such express exclusion is to be inferred by necessary implication from the statute itself. When the statute is silent and does not even by implication express that ss. 4 to 24 would not apply, then the Court is not supposed to presume exclusion on account of the statute being silent in that aspect.
2.3 Sub-s. (2) of s. 29 makes it clear that if a period prescribed in the special statute is different from that prescribed in the Limitation Act, the period provided in the Limitation Act shall be subject to the special period prescribed by the special statute and the provisions contained in ss. 4 to 24 would apply on the basis of such special period so prescribed insofar as and to the extent to which they are not expressly excluded by such special law.
2.4 It appears that under s. 256(1), a period has been provided together with a power to condone the delay within a limited period as prescribed in the proviso to s. 256(1). This was done in view of the fact that the Limitation Act had no manner of application before the Tribunal before whom an application for reference under s. 256(1) is to be made. But when it incorporated the provisions for reference to the High Court under sub-s. (2), it had only provided the period within which such an application is to be made, remaining silent with regard to the question of exclusion of the application of ss. 4 to 24. At the same time, s. 260A while providing for special period of limitation, in sub-s. (2), the statute remains silent with regard to the question that by necessary implication the application of ss. 4 to 24 is excluded, the Court is not supposed to presume such exclusion, particularly when there is nothing to hold that the provisions of s. 260A are hit by s. 29(2) of the Limitation Act or that the application of ss. 4 to 24 is expressly excluded or even by necessary implication.
2.5 Therefore, we are unable to agree with the contention raised by Mr. Murarka, learned counsel for the respondent, that s. 5 has no manner of application in respect of an appeal preferred under s. 260A. On merit :
3. Having heard the learned counsel for the parties, we find on merit that the delay has been sufficiently explained. The delay, therefore, is condoned.
3.1 Let the appeal be listed for admission after a week. Let a copy of the memorandum of appeal be served upon the learned counsel for the respondent in respect of both the assessment years.
3.2 However, on merit, the learned counsel for the respondent pointed out that the delay has not been properly explained and there are time-gaps. Learned counsel for the appellant, however, pointed out that the delay has since been properly explained and there seems to be no time-gap.
No order is passed as to costs.
[Citation : 279 ITR 104]
