INCOME TAX OFFICER JAGDALPUR vs. SURENDRA KUMAR KATARIA PROPRITOR

HIGH COURT OFCHHATTISGARH AT BILASPUR Tax Case (Income Tax Appeal) No.21 of 2007 APPELLANT: Assistant Commissioner of Income Tax, Circlel, Bhilai Versus RESPONDENT: Shri Mahavir Prasad Verma, Prop Durga Jwellers, Jawahar Market, . Camp-2, Bhilai .T.A.No.49 Of 2003 APPELLANT: Chandra Shekhar Kastwar, S/o Late Shri Kapoorchand Kastwar, Aged about 43years, r/o Sadar Bazar, Dhamtari, District Dhamtari (CG) Versus RESPONDENTS: 1. 2. 3. Income Tax Officer, Ward Dhamtari, District Dhamtari (CG) The Commissioner, Income Tax, Raipur (CG) Income Tax Appellate Tribunal, Nagpur Bench, Nagpur. Tax Case (Income Tax Appeal) No.08 of 2006 APPELLANT: Assistant Commissioner of Income Tax, Circle 2 (1), Raipur Versus RESPONDENT: M/s Geedam Cold Storage Pvt. Ltd., Opposite Forest Depot, Geedam Road, Jagdalpur (CG) Tax Case (Income Tax ADDeal)No.Q7 of 2006 APPELLANT: Assistant Commissioner of Income Tax,1(2)Raipur. Versus RESPONDENT: M/s Badger Green Field & Finance Pvt. Ltd., Samta Colony, Raipur Tax Case (Income TaxAppeaO No.7 of2008 APPELLANT: Assistant Commissioner of Income, Circle2-1, Raipur Versus

RESPONDENT: Shri Vinod Goyial Nayapara Raipur APPELLANT: RESPONDENT: LT.A,No,13of2005 Income Tax Officer-2, Rajnandgaon, DistrictRajnandgaon,Chhattisgarh. Versus Shri Mukul Deshlehara, Proprietor of M/s Deshlehara, Udyog, Village Dewada, Tehsil and District Rajnandgaon, Chhattisgarh Tax Case (Income Tax Appeal) No.20 of 2006 APPELLANT: Income Tax Officer, Jagdalpur Versus RESPONDENT: Surendra Kumar Kataria, Proprietor, M/s Gaurav Traders, Main Road, Keshkal, District Baster(CG) Tax Case (Incpme Tax Appeal) No.18 of2QQ6 APPELLANT: IncomeTaxOfficer, Jagdalpur Versus RESPONDENT: Surendra Kumar Kataria, Proprietor, M/s Gaurav Traders, Main Road, Keshkal, District Bastar (Cr APPELLANT: AND Tax Case (Income TaxAppeal) No.19 of2006 Income Tax Officer Jagdalpur Versus RESPONDENT: Surendra Kumar Kataria, Proprietor, IVt/s Gaurav Traders, Main Road, Keshkal, District Bastar(CG) Present: Shri S. Rajeshwar Rao, counsel for theappellants in all the appeals and counsel for therespondentin I.T.A. No.49^003. Shri Ashish Surana, counselfor the appellant in I.T.A. No.49/2003. Shri Rajendra Tripathi, counsel for the respondent in Tax Case (Income TaxAppeal)No.21/2007.

•'^ \ Shri Neelabh Dubey.counsel for the respondent jn Tax Case (Income TaxAppeal) No.7/2006 and 8/2006. Divlsion Bench: Hon'bleShri Dhirendra Mishra & Hon'ble Shri R.N. Chandrakar, JJ. ORDER (Passed on |^"June,2009) The following order of the Court was passed by Dhirendra Mishra, J. 1. The appellants herein have preferred these appeals under Section 260-A ofthe 'income TaxAct, 1961 (in short 'the Act')along withseparate applications under Section 5 of the Indian Limitation Act for condonation of delay, as these appeals have been preferred after the prescribed period of limitation of 120 days from the date on which theorder appealed against was received by the appellants as provided under Section 260-A sub-section 2 ofthe Act. 2. ShriRajeshwara Rao, leamed counsel for the Revenue submitted that the Income Tax Act, 1961 and the provisions of Sectipn 260-A are not complete 'Cc-ae in itself. By virtue of sub-section (7) of section 260-A, provisions ofthe Code of Civil Procedure relating to appeal are applicable to appeal under Section 260-A. Under Order 41 Rule 3-A of the CPC.application for condonation of delay, for condoning the delay inappeal is maintainable and that procedure is applicable to appealunder section 260-A and, therefore, it cannot be said that Section 5 ofthe Limitation Act does notapply to appeals under Section 260-A. Specific provisions have been made forcondonation of delay under Section 249 and 253 and application under Section 256(1 )ofthe IT Act for cpndoning the delay authorizing such Authorities/Tribunals to condone the delay only because these Authorities/Tribunals are not courts, however, no such provision has been made under section 256 (2) and 260 for condoning the delay in filing applications/appeals to the High Court, as Section 29(2) of the Limitation Act is attracted and, therefore, the Legislature did not

feel it necessary to expressly provide for condonation of delay by the High Court. ' ' :: : ! ' ': .' : • •^,, 4"...' •';, : ' ,' 3. Reliance is placed on Full Bench Judgment of the High Court of Bombay at Goa in the matter of Commissioner of Income Tax Versus Velingkar Brothers and inthe case ofCITVersusAnandilal Poddar &Sons Ltd., . 4. On the other hand, Shri Neelabh Dubey Advocate appearing on behalfofthe respondents submitted that the Income Tax Act, 1961 is acomplete Code in itself. It provides for all aspects relating to levy and recovery of Income Tax-, procedure therefor, remedies including appeals and revisions and penalties and prosecution. Section 260-A provides for an appeal to the hligh Court on substantial question of law. Sub-section 2(a) of Section260-A provides in mandatory form that the appeal shall be filed before the Tribunalwithin 120 days and a longer period of limitation, already provided by the Legislature, impliedly excluded the applicability of Section 5of the Limitation Act. Learned counsel would submit that collection of revenue cannot brook delay and, therefore, the Legislature by providing the different period of limitation, which is longer than the period of limitation provided in Article 116of the LirR^on Act clearly indicates its intention in excluding application of Section 5 of the Limitation Act by necessary implication, He further submitted that the legislature consciously omitted the provision relating to condonation of delay in appeal in the High Court as appeals are preferred in the High Court after the question in issue has already been considered by three forums. 5. Reliance is placed on the judgment of the Hon'ble Supreme Court dated 27 March, 2009 delivered in the matter of Commissioner of Customs and Central Excise Versus Nl/s Hongolndia (P) Ltd., and another in SLP(C) No.14467/2007. 1 (2007) 209 CTR (Bom) (FB) 8: (2007) 289 ITR 382 (Bom) (FB): (2007) 161 TAXMAN 264 (Bom) (FB) ^ . . .. • .- (2005) 139 CTR(Cal) 539: (2005) 279 ITR 104 (Cal)

(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 andsuch appeal underthis 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;

(b) Omitted by the Finance Act, 1999, w.e.f. 1-6-1999.

't^',.. (c) in the formofa memorandum of appeal precisely stating thereiri thesubstantial question of lawlmolved. (3)Whether the High Court issatisfied that a substantial questionof law is involved in any case, it shall formulate that question. (4)The appealshall beheard only on the question so formulated, and the respondents shall.at the hearing of the appeal, be allowed toargue that thecase does not involvesuch question: Provided that nothing in this sub-section shall bx.-? deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeat on any other substantialquestionoflaw not formulated by it, ifit ^ is satisfied that the case involves such question. (5) The High Court shall decide the question of law formulated and delivered such judgment thereon containing the grounds on which such decision is founded and mayaward such costas itdeemsfit. (6) The High Court may determine any issue which - (a) hasnot been determined by theAppellate Tribunal; or • ' ; . ' ! . : ,• (b) has been wrongly determined by the Appellate Tribunal by reasonof a decision on such question of laifr as is referred to in sub-section (1). (7) Save aSiOtherwise provided in this Act,the provisions ofthe Code ofCivil Procedure, 1908 (5 of1908), relating to appeals to the High Court shall, as far as may be, applying the caseofappeals underthis section. 8. Sub-section (1) provides for appeal against the order of the Appellate Tribunal to the High Court provided that the High Court is satisfied that the case involves substantial question of law. Sub-section (2) provides that the appeal is to be fjled within 120 days from the date on which the orderappealed against is received by the assessee or the Chief Commissioner or Commissioner, as the case may be. Sub-section (3) stipulates that the High Court, if satisfied, may formulate substantial question of law involved in any case and the appeal

is to be heard and decided only on question so formulated. Sub-section (7) makes the provisions of CPC, 1908, relating to appeals to the High Court, applicable jncaseof appeal under this section only whereit is not otherwise provided in the Act. 9,-ln view of the specific provisions ofthe Act, as detailed hereinabove, question fo^sur consideration is -whether Section 5 of the Limitation Act is applicable in respect of appeal filed under Section 260-A of the Act? ls^ShriRajeshwaraRao,learnedcounselfortheappellants,c6ntendedthatinthe absence of any specific prohibition in the Act for condoning the delay, particularly, in Section 260-A of the Act, Section29(2) of. the Limitation Act is applicable. He further argued that sub-section (7)ofSection 260-A specifically makes the provisions of CPC in relation to appeal before the High Court applicableand, therefore, as per the provisions of Order 41 Rule 3-A of the CPC the High Court is empowered to entertain and decide any application for cc'ridonation of delay in filing the appeal. 11. In the matter of Velingkar Brothers (Supra),the question 'whether Section 5 of the Limitation Act, 1963shall apply in case of an appeal filed under Section 260-A of the ITAct, 1961' was referred by the Division Bench to a Larger Bench for adjudication. Answering the reference in affirmative, the full Bench of the Bombay High Court held thus:- "Sec.260A itself provides that the provisions of the CPC relating to appeals, as far as possible, are applicable to the appeals under S.260A. It would mean that S.260A is not exhaustiveof all the facets, a'spects'and matterswith regard to the appeals under S.260A. It seems that the legislature did not intend to make the provision of S.260A watertight. Theexdusipn ofthe provisions of ss.4 to 24 of the Limitation Act as provided ins.29(2) cannot be lightly inferred. Impliedexclusion is not readily inferred. That the legislature has used thewords'shall be filed' in

sub-s.(2) means that the limitation for filing tl^e appeal is as provided therein but that does not make s.29(2) of the Limitation Act, 1963 inapplicable. The High Court being the superior Court, the power tocondone the delay in filingthe appeal must be read to be existent, more so by virtue of s.29(2) of the Limitation Act, unless there is clear indication of its exclusion byimplication. The use oftheword 'shall' andthe longer period oflimitation (120 days) are not indicators of Such exclusion. Nor from the position that S.260A is silent about applicability of-^ s.29(2), any justifiable inference can be drawn for inapplicabilityofthat provision. Whatis obvious need not be stated and, therefore, legislature may have ^ thought fit that it was not necessary to express specifically about the power of the High Court to condone the delay in viewofexistence ofs.29(2). When the statute is silent, the presumption is not drawn automatically about the exclusion ofs.29(2) or for that matter s.5 of the Limitation Act. There is nothing to indicate that the application of s.29(2) is excluded except providing a special limitation. Sec.260A does not necessarily imply the exclusion of ss.4 to 24 of the Limitation Act. Therefore, s.5 of the Limitation Act is~ applicable incase ofthe appeals filed under S.260A." 12.1nthe matter ofAnandiIal Poddar & Sons Ltd. (Supra) also, the Calcutta Highr Court, while considering applicability of LimitationAct in appeal before the High Court under Section 260A of the IT Act, held that though Section 260A of the IT Act expressly provides for a period of limitation for preferring an appeal to the High Court, the same does not implythat the applicationofss.4to 24ofthe Limitation Act is excluded. In order to exclude the application of ss.4 to 24 within the meaningofs.29of the Limitation Act, the necessary exclusion must be express andsuch express exclusion is to be inferred bynecessary implication from the statute itself. The Court is not supposed to presume exdusion on account of thestatute being silent in that aspect. It cannot be

held that Section 5 of the Limitation Act has no application in respect of appeal preferred under Section 260A. l3.The Supreme Court in the matter of M/s Hongo India (P) Ltd., and another (Supra),while dealing with question 'whether the High Court in the reference application underSection 35H(1) of the unamended Act, has power under Scsdion 5of the Limitation Act, 1963 to condone the delay beyond the period prescribed under the main statute i.e. Central Excise Act', held that the High , Court has no power to condone the delayin filing the 'reference application" filed by the Commissioner under unamended Section 351-1(1) of the Central Excise Act, 1944 beyond the period of 180days. 14. Shri Neelabh Dubey, learned counsel appearing forthe respondents submitted thatthough the judgment inthe matter of M/s Hongo India (P) Ltd., and another(Supra) is in relation to reference under Section 35M(1) ofthe Central Excise Act, but the relevant provisions under Chapter XX of the Act is pari rrateria to the provisions of appealunder Chapter VI-A of the Central Excise Act, 1944, therefore, ratioof law laid downin ftfl/s Hongo India (P) Ltd., and anothershall applyto anyappeal under Section 260A of theAct also. 15.8efore appreciating'theabove argument of learned counsel for the respondents, we propose to examine the provisions relatingto appeals under Ghapter VI-Aof the Central Excise Act. As per Section 35, against any order passed by the Central Excise Officer, appeal liesto the Commissioner of Central Excise (Appeals). Theappeal is to be preferred within 60 days from the date of communication ofsuch decision to theaggrieved party. Proviso to sub-section(l) enables the Commissioner (Appeals) to allow it to be represented within a further period of 30 days if he is satisfied that the appellantwas prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days. Any person aggrieved by the decisions/orders

r 10. of the Commissioner of Central Excise or the Commjssipner (Appeals) may prefer anappeal to the Appellate Tribunal within 3 months Trom the date on which theorder appealed is communicated to the aggrieved party, Sub-section (5) enables the Tribunal to condone the delay even beyond the prescribed period provided there was sufficient cause for not presenting it within that period. Under Section 35EE, revision lies to the Central Government. Under sub-section (2), application under sub-section (1) is to be made withinS -'l' months from the date of communication. Proviso to sub-section (2) enables the revisional authority to condone the delay for a further period of 90 days. Unamended Section 35-G provides for appeal to the High Court. Sub-section 2(a) enables the aggrieved person to filean appeal to the High Court within 180 days from the date on which the order appealed against is received by the aggrieved party. There is no provision to condone the delay in filing the appeal beyond prescribed period of 180 days. Unamended Section 35H provides for reference application to the High Court. Under sub-section (1), the Commissioner of Central Excise or other party within a period of 180 days of the date on which he is served with notice of an order under Section 3C 'v<lirect the Tribunal to refer to the High Court any question of law arising from such order ofthe Tribunal. Application for referenceis to be madeto the High Court within 180 days and there is no provision to extend the period of limitation for filing application to the High Court beyond the said period and condone the delay. l6.Afterclosescrutiny ofthe provisions contained in ChapterVI-A ofthe Central Excise Act, 1944, we find substance insubmission of learned counsel for the appellants that the provisionscontained in ChapterVI-A ofthe Centrat Excise Act, 1944, which deals with appeal, \s panmateriato the provisions contained in Chapter XX of the Act,which also dealswith appeals and revisions underthe ITAct.

(2004) 1 Supreme Court Cases755

12 The application of this rule of construi.ction has the merit of avoiding any apparent contradiction between a seriesofstatutesdealing withthe same subject;it allows the use of an earlier statute to throwlight on the meaning ofaphrase used in a laterstatute inthe samecontext; it permits the raisingofa presumption, in the absenceof anycontextindicating a contrary intention, thatthe same meaning attachesto the same wordsin a laterstatute as in an earlier statute if the words are used in similar connection inthe twostatutes; and it enables the use 6f a later statute as parliamentary exposition of the meaning of ambiguous expressions in an earlier , statute."" . 18.1n the matter of Sirsilk Ltd. Versus Textiles Committee and others , the 1-lon'bleSupreme Court while considering asto what statutes are considered to be in pari maten'a, referred to "Statutes and Statutory Construction" by Sutherland thus:- "Statutes are considered to be in pari materia to pertain to the same subject-matter when they relate to the same person or things, or to the same class of persons or thing,orhave the same purpose or object. {Statutesand Statutory Consfrocf/on, Vol.2, p.535, 3rd edn.)" 19.1n the matter of J.K. Steel Ltd., Versus tlnion of India and others , thc Hon'ble Supreme Court, while considering pari materia provisions of Central Excises and Salt Act (1944), Sch.l.ltem 26AA-TariffAct(1934), Sch.l entry 63 (36), held in paragraph-29 of the judgment that Acts being in pari materia must be taken together as forming one code and as interpreting and enforcing each other. In para-26 ofthe above judgment, referringto its earlier judgment inthe matterof C.A. Abraham V. I.T.O., Kottayam{AIR1961 SC609},itwas observed that 'ln interpreting a fiscal statute the Courtcannot proceed to make 1989 Supp (1) Supreme Court Cases 168 AIR 1970 SUPREME COURT 1173

1^.1, good deficiencies if there may beany; ttie Court must interpret the statute asit stands and in case of doubt in a manner favourable to the tax payer." 20. The Hon'bleSupreme Court after elaborately dealing with the above provisions ofthe Central Excise Act in detail has negated the argument based on Section 29(2) of the Limitation Act that in absence of any express exclusion of the pr6'visions of Limitation Act in any special law ss.4 to 24 of the Limitation Act would be applicable, Ithas been observed thus: "In this regard, we have tosee the schemeof the special law here in this case is Central Excise Act. The nature of the remedy provided thereinare such that the legislature intended it to be a complete Code by itself which alone should govern the severalmatters provided by it. If, on an examination of therelevant provisions, it is clear that the provisions ofthe Limitation Act are necessarily excluded, then the benefitsconferred therein cannot be called in aid to supplement the provisionsof the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an expressreference, 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, to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application tothe High Court. The scheme of the Central Excise Act, 1 944 support the conclusion that the time limit prescribed underSection 351-1(1) to make a reference to High Court js absolute and unextendable by courtunderSection 5of the Limitation Act. It is well settledlaw that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act."

14 2l.Wehavealready reproduced the relevant provisionsip^-the Income Tax Act contained in Chapter XX,which relates toappeals and reyisions. We have also pointed out the salient features of the provisions under Chapter VI-A, which deals with appeals under the Central Excise Act. Both the acts have been enacted by the Central Legislature. The Central Excise Act wasenacted to consolidate andamend thelaw relating to central dutieson excisewhereas, the Income Tax Act, 1961 was enacted to consolidate and amend the law relating to income tax and super tax. Both the acts are periodically amended through Finance Act to give effect to the finandal proposals of the C?ntral Government for the relevant financlal yearsand thus have the same purpose and object. Therefore, on the doctrine of "pari matena", reference to Central Excise Act is a permissible aid to theconstruction of provisions of the Act. 22. As far as the arguments advanced by Shri Rajeshwara Rao, learned counsel for the appellants herein basedon judgment of Full Bench ofthe Bombay High Court that sub-section (7) of Section 260A of the Act makes the provisions of CPC applicable in relation to appeal to the High Court and, therefore, the Income TaxAct is not a complete Code isconcerned, fromperusal of sub- section (9) of Section 35-G of the Central Excise Act, we find that the same is exactly identical assub-section (7) of Section 260A ofthe Act. 23. In the matter of Ravulu Subba Rao and others Versus Commissioner of Income Tax, Madras , in paragraph-IOit has been held thatthe Courts must therefore construe the provisions of the Indian Income Tax Act asforming a code complete in itself and exhaustive of the matters dealt with therein, and ascertain what their true scope is. In paragraph-16, it has been further held thus: "To sum up, the Indian.lncome Tax Act is a self contained code exhaustive of the matters dealt with AIR1956SC604

therein and its provisions show an intention to depart from the common rule, quifacit peralium facitperse. Its intentionagainis that a firmshould be given benefit of S.23(5)(a), only if it is registered underS.26-A in accordance with the conditions laid down in that section and the rules framed thereunder. And as those rules require the application to be signed by thepartner in person, the signature by an agent on his behalf is invalid." -24. Thus, relying upon principles of law laid down by the Hon'ble Supreme Court in the matter of IVI/s Hongo India (P) Ltd., and another (Supra), we hold that the Income TaxAct, 1961 is a special law. The nature of the remedy provided therein are such thatthe legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. The scheme of the Income Tax Act, 1961,supportthe conclusion that time limit prescribed under Section 260A to file an appeal before the High Court is absolute and unextendable by court under Section 5 of the Limitation Act and the limitation cannot be extended by invoking the provisions of Section 5 of the Limitation Act. 25. Since all the appeals herein have been preferredbeyond the prescribed period of 120 days under Section260A of the Act, the same are dismissed on the ground of limitation. Noordersas to costs. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge Barve