Calcutta H.C : whether section 260A excluded the provisions of sections 4 to 24 of the Limitation Act, 1963

High Court Of Calcutta

CIT Vs. R.K.B.K. Ltd.

Section : 260A

Kalyan Jyoti Sengupta And Indra Prasanna Mukerji, JJ.

IT Appeal Nos. 136 And 356 Of 2009

G.A. Nos. 1307 And 3231 Of 2009

March  3, 2010

JUDGMENT

Kalyan Jyoti Sengupta, J. – I have had the benefit of going through the draft judgment of my learned brother, His Lordship the hon’ble Mr. Justice I.P. Mukerji. I record my full agreement as far as the ordering portion is concerned. However, I would like to express my own views having regard to the complexity of the matter. My learned brother has recorded the facts and also the problem posed before this court. His Lordship has been pleased to note various decisions of the Apex Court and High Courts cited at the Bar. I have understood in my own way the precise question involved for the disposal of the applications for condonation of delay in preferring appeal under section 260A of the Income-tax Act, 1961 (hereinafter Act 1961) in view of the ratio laid down in the case of CCE v. Hongo India (P.) Ltd. [2009] 315 ITR 449 (SC) and the legislative amendment after the said judgment was rendered in the sections 35G and 35H of the Central Excise Act, 1944 (hereinafter Act 1944) empowering the High Court to condone delay expressly.

2. Basically the point is whether the provision of section 260A of the Act 1961 has expressly or by necessary implication excluded the provisions of sections 4 to 24 of the Limitation Act, 1963, as contemplated in section 29 sub-section (2) of the Limitation Act, 1963 (hereinafter referred to as Act 1963) or not, having regard to the ratio decided in the said pronouncement of the Supreme Court and the impact of the amendment after the said decision as above.

3. My learned brother has quoted the relevant portion of the said judgment of the Supreme Court, I need not repeat it. The ratio of the said judgment is that exclusion of sections 4 to 24 of the Act 1963 either expressly or by necessary implication has to be inferred not with reference to section 29(2) of the Act 1963 but the relevant provision of the special statute. Several High Courts following the above ratio held that section 260A of the Act 1961 has excluded the application of section 5 of the Act 1963.

4. On a careful study of the said judgment it appears to me that their Lordships were dealing with the provisions of reference under section 35H of the Act 1944, when there has been no amendment by conferring express power upon the High Court to condone the delay beyond the prescribed period of limitation, nor was there any expressed exclusion of provisions of sections 4 to 24 of the 1963 Act under section 35H. At the same time their Lordships have also mentioned section 35G of the same Act but their Lordships did not decide anything in relation to the provisions of section 35G of the 1944 Act ; being the provision of appeal to the High Court in pari materia with section 260A of the Act 1961.

5. According to me the provision of reference is something different from that of appeal as the scope of the reference to the High Court or Supreme Court is to give opinion and not to decide the matter finally, while in case of appeal under any statute the court has to decide the matter finally. Under section 260A of the 1961 Act the court is not only to answer to the question formulated but to decide the matter finally. Therefore, the intention of the Legislature can be inferred that while making provision for reference by which complete adjudication of the dispute is not possible a rigid time-limit is provided as the matter has to be decided finally thereafter as per the scheme of the statute. In the event in case of reference by virtue of section 29(2) of the 1963 Act section 5 thereof is applied then there will be no end of the matter as the court will be flooded with applications for condonation of delay only for the opinion. In the sequel the litigations involving revenue which has impact on the economy of the country will be remaining unresolved. Therefore, in the absence of specific provision the intention of the Legislature may reasonably be inferred not to make section 5 of the Limitation Act applicable in contrast to the provisions of inter-departmental appeal where power of condonation in different manner and methods have been provided.

6. The Supreme Court in that case held amongst other, that the Act 1944, is a complete code by itself and subsequently several High Courts following the above judgment of the Supreme Court pronounced that the 1961 Act is a complete code by itself. When a particular statute having the status of completeness in code no external aid of any other Act for interpreting any provision of that statute is required. Hence following respectfully the ratio of the said Hongo India (P.)Ltd.’s case (supra), I examine with reference to the provisions of section 260A of the 1961 Act whether the provision of sections 4 to 24 of the 1963 Act have been made non-applicable or not by this section. My learned brother has noted while following the aforesaid case Chhattisgarh High Court, Madhya Pradesh High Court, Full Bench of the Allahabad High Court, Gauhati High Court and also Bombay High Court have held applying the doctrine of pari materia power of condonation of delay is not conferred on High Court expressly or by necessary implication under section 260A of the 1961 Act. In view of the legislative amendment of sections 35G and 35H of the 1944 Act with retrospective effect conferring upon High Court express power to condone the delay the decision of the Supreme Court in Hongo India (P.) Ltd.’s case (supra) is no longer applicable. Of course our High Court in the case of CIT v. Anandilal Poddar & Sons Ltd. [2005] 279 ITR 104/ 148 Taxman 513 had held earlier that by virtue of section 29(2) of the 1963 Act the provisions of sections 4 to 24 has not been excluded by the Legislature in section 260A of the Act 1961. Their Lordships were also of the view that exclusion must be in expressed words not by necessary implication. If the doctrine of pari materia is applied for interpretation of section 260A of the Act 1961 following the decision in Hongo India (P.) Ltd.’s case (supra) however this judgment is of no relevance and effect. It is true subsequently several High Courts decided that court has no power to condone delay under section 260A of the Act 1961 applying the principle of pari materia.

7. In Hongo India (P.) Ltd.’s case (supra) admittedly the Apex Court has not examined the scope and sweep of section 260A nor section 30G of the Act 1944. A later judgment of the Supreme Court in case of Chaudharana Steel (P.) Ltd. v. CCE [2009] 8 JT 134 has dealt with the provisions of section 35G for preferring appeal under the Act 1944. In the said judgment the Apex Court has merely held the ratio decided in Hongo India (P.) Ltd.’s case (supra) in relation to the reference under section 35H of the Central Excise Act has full application to the present case also. This judgment has not examined whether in view of making provision of the Code of Civil Procedure relating to appeals to the High Court including rule 3A of Order XLI applicable in section 35G of the Act 1944 and also section 260A of the Act 1961 the Legislature intended to exclude by necessary implication, application of section 5 of the 1963 Act. Sub-section (9) of section 35G of the Act 1944 specifically provides applicability of the Civil Procedure Code relating to appeals to the High Court. It is settled position of law when a particular point of law has been left undecided in any judgment of the Apex Court, such judgment cannot be a binding precedent. I am of the view that this question is still open for decision by this court to gather intention of the Legislature. Considering the above point the Allahabad High Court by its Full Bench decision and the Madhya Pradesh High Court discussed the implication of the provision of rule 3A of Order 41 of the Civil Procedure Code in section 260A of the 1961 Act. In this judgment, their Lordships were not called upon to decide what was the intention of the Legislature in making provision of this nature. Their Lordships applied the doctrine of pari materia and held following the ratio of Hongo India (P.) Ltd.’s case (supra) that under section 260A there is no place of power of condonation. I feel that when in section 260A under sub-section (7) the Legislature intended to make application of the provision of the Civil Procedure Code relating to appeals to the High Court and thereby amended provision of Order 41, rule 3A has been made applicable automatically the Legislature had its mind to empower court to condone delay. It is true while reading Order 41 rule 3A it can easily be gathered such a provision is a procedural nature and the rule by itself does not empower the court to condone delay which is a substantive provision of law. Such power has to be derived from the substantive provision of the statute namely either from the Limitation Act or under the provision of Special Act/Rules itself. None of the judgments cited before us does appear to have answered the question whether adopting the provisions of the Civil Procedure Code relating to appeal to High Court including rule 3A of Order 41 thereof the intention of the Legislature is to exclude or include the provisions of sections 4 to 24 of the Limitation Act or not. I think, as the court endeavours to understand the mind of the Legislature from a statute the exercise essentially is guess work of legitimate degree. The intention of the Legislature in case of ambiguity can never be gathered by the court with certainty. The Supreme Court’s pronouncements and all those of the High Court concluding non-applicability of sections 4 to 24 of the 1963 Act are based on a plain reading of either relevant provision of the same statute or applying the doctrine of pari materia. It is well established that in order to ascertain the intention of the Legislature for interpretation of statutory provision, wherever necessary various methods are adopted. One of the methods is doctrine of pari materia. Thus the court’s effort to ascertain intention of the Legislature is never ended until it is understood with certainty. It can be rediscovered what is the intention when one or other method recognized by law is left undecided. None ever raised question before the court, consequently no answer was called upon to be given as to why the provisions of the Civil Procedure Code with reference to Order XLI, rule 3A have been engrafted in section 260A of the Income-tax Act. If power of condonation of delay and necessarily applicability of provision of section 5 of the Act 1963 is not intended to apply then there was no reason to make a provision for procedure for condonation of delay. I am of the opinion with insertion of procedure the Legislature has intended not to exclude the applicability of sections 4 to 24 of the 1963 Act by virtue of section 29(2) of the same Act and it would appear intrinsically from section 260A of Act 1961 as analysed above. We, therefore, accept with respect the conclusion arrived at by our court in the case of Anandilal Poddar & SonsLtd. (supra). It would not be out of context to mention that no Legislature makes any law intending to prejudice the right of the subject. If power of condonation of delay in the said section is not inferred then there would be serious prejudice to the litigants. For example Government is known to act through bureaucratic hassles and indecision, so it is natural as experience shows Government action is always delayed. In this case for delay of even one single day Government’s right of remedy would be jeopardized in a clear case of injustice at the hands of Tribunal. Similar will be the situation in case of individual litigant (s) when they may not be able to take steps within the time for any unforeseen or impossible circumstance. I feel in view of my above discussion a case of clear necessity emerges for inferring casus omissus of the Legislature, not expressly empowering the court to condone delay. In the case of Padmasundara Rao v. State of Tamil Nadu [2002] 255 ITR 147 (SC) in paragraph 15 clear guideline is provided as to what extent court can supply casus omissus (page 155) :

“15. Two principles of construction-one relating to casus omissus and the other in regard to reading the statute as a whole-appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature.”

8. According to me after amendment by the Legislature in the Act 1944 Hongo India (P.) Ltd.’s case (supra) decision cannot automatically be made applicable in this section as amendment of the statute is the task of the Legislature and Legislature alone. The court cannot make the amendment applicable expressly applying the doctrine of pari materia. If this amendment of the Act 1944 is read into section 260A of the 1961 Act it would amount to courts’ act of legislation. When the provisions of sections 4 to 24 of the 1963 Act are applied, the court is empowered under section 5 of the 1963 Act to condone delay for any period, but in the special statute power to condone delay is circumscribed by time limit, then the court cannot extend time beyond stipulation. It will appear from the various parts of the Income-tax Act that various periods of limitation and power of condonation for fixed period, are provided and the same are inconsistent with the provision of section 5 to some extent. A number of Acts in different subjects provide for maximum time-limit for condonation. For example section 34 of the Arbitration and Conciliation Act, 1996, provides expressly a maximum time-limit up to which the court can condone and it is inconsistent to a great extent with the power under section 5 of the Limitation Act which does not restrict any period of time.

9. Per Indra Prasanna Mukerji, J. – The question to be answered in this application is whether in an appeal filed under section 260A of the Income-tax Act, 1961, beyond the period of limitation, the High Court has the power to condone the delay.

10. Section 260A enacts as follows :

“(1) Appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal before the date of establishment of the National Tax Tribunal, if the High Court is satisfied that the case involves a substantial question of law.

(2) The Chief Commissioner or the Commissioner 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 is received by the assessee or the Chief Commissioner or Commissioner . . .
(c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved.
(3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question :

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.

(5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit.

(6) The High Court may determine any issue which-

(a) has not been determined by the Appellate Tribunal ; or
(b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1).
(7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section.”

11. The Limitation Act, 1963 applies to proceedings in court. This principle is well established and well known. This Act prescribes the time within which a suit, appeal or application can be filed before the court. Section 5 of this Act also gives power to the court to condone the delay in filing appeals and applications, if sufficient cause is shown. Section 29 is important. It says that when a local or special law prescribes a period of limitation, that period of limitation will apply. But, the second sub-section is very crucial. It is to the effect that although the limitation prescribed by any local or special law will apply, nevertheless, inter alia, section 5 would be applicable for the purpose of condoning delay, unless expressly excluded.

12. The issue which is sought to be answered by the court fell for consideration before the Supreme Court with regard to a different statute, that is the Central Excise Act, 1944. The question before the Supreme Court was whether the High Court could entertain a reference application beyond the period of limitation prescribed in the above Act. But, the provisions of this Act regarding Departmental appeals and appeal before the Tribunal and from Tribunal to the High Court and reference applications are in pari materia with the corresponding provisions of the Income-tax Act, 1961. In that case Hongo India (P.) Ltd. (supra), a three-Judge Bench of the Supreme Court held that the High Court had no power to condone the delay in filing a reference application. The Supreme Court considered the provisions of the Central Excise Act relating to Departmental appeals and applications and the power of the adjudicating authorities, including the Tribunal to condone the delay. It noticed that in some cases unlimited power was given whereas in other cases limited or no power was given. According to the Supreme Court on a consideration of the entire above provisions the Legislature had expressed the intention that the High Court had no power to condone the delay.

13. Important passages from the above judgment of the Supreme Court are as follows (page 458) :

“In the earlier part of our order, we have adverted to Chapter VI-A of the Act which provides for appeals and revisions to various authorities. Though Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to the Appellate Tribunal. Also an additional period of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court under section 35G and reference application to the High Court under section 35H, Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act . . . Though an argument was raised based on section 29 of the Limitation Act, even assuming that section 29(2) would be attracted, what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to the High Court. It was contended before us that the words ‘expressly excluded’ would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see that the scheme of the special law here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, even in a case where the special law does not exclude the provisions of sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the High Court. The scheme of the Central Excise Act, 1944 supports the conclusion that the time-limit prescribed under section 35H(1) to make a reference to the High Court is absolute and unextendable by the court under section 5 of the Limitation Act. It is well-settled law that it is the duty of the court to respect the legislative intent and by giving a liberal interpretation, limitation cannot be extended by invoking the provisions of section 5 of the Act.”

14. The above decision of the Supreme Court has been followed by various High Courts not only with regard to the power of the High Court to condone delay under the Central Excise Act, 1944 but also with regard to its powers to do so under the Income-tax Act, 1961, on the reasoning that the appeal provisions to the High Court are identical in the income-tax statute. So are the provisions regarding condonation of delay in matters before the departmental officers and Tribunal.

15. As far as decisions on the Income-tax Act are concerned, following the above Supreme Court decision, various High Courts have held that they have no power to condone delay in filing section 260A appeal. Reference may be made to the Division Bench decision of the Chhattisgarh High Court in Asstt. CIT v. Mahavir Prasad Verma [2009] 317 ITR 36, a Division Bench decision of the Gauhati High Court in CIT v. Williamson Tea (Assam) Ltd. [2009] 319 ITR 368 and Asstt. CIT v. Shubhash Traders/Tesla Transformers (P.) Ltd. [2009] 318 ITR 402 (MP), a Full Bench decision of the Allahabad High Court in CIT v. Mohd. Farooq/ New Cawnpore Flour Mills (P.) Ltd. and Janpad Thok Kendriya Upbhokta Sahkari Bhandar Ltd. v. CIT [2009] 317 ITR 305 / 184 Taxman 191 (All.), of the Bombay High Court made on 8th July, 2009 by its Division Bench in CIT v. Grasim Industries Ltd. [2009] 319 ITR 154.

16. I would have had no option but to follow the above decisions. I felt I was bound by the above Supreme Court decision.

17. But it has been brought to our notice that by the Finance Act of 2009 the Central Excise Act, 1944 and the Customs Act have been amended to the following effect :

“87. In section 130 of the Customs Act, after sub-section (2), the following sub-section shall be inserted and shall be deemed to have been inserted with effect from the 1st day of July, 2003, namely :-

‘(2A) The High Court may admit an appeal after the expiry of the period of one hundred and eighty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period.’

88. In section 130A of the Customs Act, after sub-section (3), the following sub-section shall be inserted and shall be deemed to have been inserted with effect from the 1st day of July, 1999, namely :-

‘(3A) The High Court may admit an application or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (1) or sub-section (3), if it is satisfied that there was sufficient cause for not filing the same within that period.'”

“108. In section 35G of the Central Excise Act, after sub-section (2), the following sub-section shall be inserted and shall be deemed to have been inserted with effect from the 1st day of July, 2003, namely :-

‘(2A) The High Court may admit an appeal after the expiry of the period of one hundred and eighty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period.’

109. In section 35H of the Central Excise Act, after sub-section (3), the following sub-section shall be inserted and shall be deemed to have been inserted with effect from the 1st day of July, 1999, namely :-

‘(3A) The High may admit an application or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (1) or sub-section (3), if it is satisfied that there was sufficient cause for not filing the same within that period’.”

18. This amendment has retrospective effect from 1st July, 2003 in case of appeals to High Court. This amendment has been made after the above Supreme Court decision.

19. In making its decision in Hongo India (P.) Ltd.’s case (supra) the Supreme Court was unable to ascertain the intention of Parliament on a plain and ordinary reading of the provision that provided for a reference application to be filed in the High Court from an order of the Tribunal, regarding the power of the High Court to condone delay. In those circumstances it considered the surrounding sections dealing with Departmental appeals and applications and on examination of those provisions the Supreme Court found that it is to be inferred that Parliament had expressly excluded the power of the High Court to condone delay.

20. Therefore, the Supreme Court had taken external aids to construction of that provision.

21. The subsequent amendment of the Central Excise Act provides in my opinion an additional external aid to construction of section 260A of the Income-tax Act which was not before the Supreme Court. Assistance of later statutes is an aid to construction of earlier statutes, as is recognized in Syn 4 of Chap. 4 of Justice G. P. Singh’s treatise on the Principles of Statutory Interpretation, Eighth Edition 2001 from pages 249 to 253.

22. One passage from the said treatise can be conveniently reproduced hereunder :

“But when an earlier Act is truly ambiguous a later Act may in certain circumstances serve as a parliamentary exposition of the former. The rule of construction applicable in such cases can be best stated in the words of Lord Sterndale : ‘I think, it is clearly established-that subsequent legislation on the same subject may be looked to in order to see what is the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that subsequent legislation, if it proceeds upon an erroneous construction of previous legislation, cannot alter that previous legislation, but if there be any ambiguity in the earlier legislation then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier.’ Referring to this passage Lord Buckmaster said : ‘This is in his opinion an accurate expression of the law.’ But as expressed in the passage of Lord Sterndale and as explained authoritatively by the House of Lords this rule of construction applies only when the earlier enactment is ambiguous i.e., ‘fairly and equally open to diverse meanings’ and the same rule applies even though the later Act contains a provision that it is to be read as one with the earlier Act. It has further been said that it is clearly wrong to construe an unamended section of the earlier Act in the light of the amendment made by the later Act in other parts of the earlier Act unless the unamended section is ambiguous i.e., ‘fairly and equally open to diverse meanings’.”

23. The Supreme Court had the occasion to interpret section 3 of the 1922 Income-tax Act, defining “individual”. In making an interpretation of the word “individual” in section 3 of the 1922 Act, it took the assistance of the later 1961 Income-tax Act, in the case of Jogendra Nath Naskar v. CIT [1969] 74 ITR 33 (SC). Its dicta was based on an English decision in the case of Cape Brandy Syndicate v. IRC [1921] 2 KB 403 referred to in Justice G. P. Singh’s Treatise supra. The Supreme Court said (page 40 of 74 ITR) :

“On a comparison of the provisions of the two Acts counsel on behalf of the appellant contended that a restricted meaning should be given to the word ‘individual’ in section 3 of the earlier Act. We see no justification for this argument. On the other hand, we are of the opinion that the language employed in the 1961 Act may be relied upon as a Parliamentary exposition of the earlier Act even on the assumption that the language employed in section 3 of the earlier Act is ambiguous. It is clear that the word ‘individual’ in section 3 of the 1922 Act includes within its connotation all artificial juridical persons and this legal position is made explicit and beyond challenge in the 1961 Act. In Cape Brandy Syndicate v. IRC [1921] 2 KB 403, Lord Sterndale M. R. said :

‘I think it is clearly established in Attorney General v. Clarkson [1900] 1 QB 156 at pages 163, 164, that subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that subsequent legislation if it proceed upon an erroneous construction of previous legislation cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation, then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier’.”

24. The above ratio was followed in paragraph 13 of Pappu Sweets & Biscuits v. Commissioner of Trade Tax [1998] 7 SCC 228. In my opinion by the said 2009 amendment of the Central Excise Act with retrospective effect from 1st July, 2003, Parliament has not only enacted that section 5 would apply, but in my opinion has indicated that it was its intention that the section would so apply, at the date of enactment of the section. This amendment is more clarificatory, in my opinion. Therefore while enacting section 260A, which is identical to its counterpart in the Central Excise Act it was Parliament’s intention to preserve the application of section 5 also. I thus hold that it was the intention of Parliament to preserve section 5 while enacting section 260A. Interpretation of a statute should ordinarily be literal and the plain reading of the words has to be given effect. At the same time when the plain reading creates some difficulties, a purposive meaning should be encouraged by the court. In view of the above amendment carried out by Parliament in 2009 I am inclined to give an interpretation of section 260A, that it did not exclude the applicability of section 5. This issue of the effect of the amendment was not before the Supreme Court and the High Courts when the above decisions were pronounced. So, I can take note of the later development and depart from the ratio of the above decisions. I have also had the privilege of reading the draft judgment proposed by my noble and learned brother and I am in full agreement with the reasons and conclusions of his Lordship in making section 5 applicable to section 260A appeal. Therefore section 5 of the Limitation Act is squarely applicable to section 260A appeals.

25. In the facts and circumstances sufficient cause has been shown for preferring this appeal beyond the time stipulated by section 260A and I condone the delay.

26. The section 5 application is allowed.

[Citation :331 ITR 269]

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