COMMISSIONER INCOME TAX vs. MS SIRMOUR TRUCK OPERATORS

PDF · subscribers
ITA/52/2006HC Himachal PradeshHPHC01002356200610 September 2010Author: HONOURABLE MR. JUSTICE DEEPAK GUPTA,HONOURABLE MR. JUSTICE SANJAY KAROL5 pages
AI SummaryRemanded

What did the High Court hold?

The Tribunal held that when an application under Section 5 of the Limitation Act is dismissed, and as a consequence, the appeal itself is dismissed as time-barred, the remedy available to the aggrieved party is a Regular Second Appeal. This is based on the Supreme Court's judgment in Shyam Sundar Sarma vs. Pannalal Jaiswal (2005) 1 SCC 436, which affirmed that an appeal presented out of time is still an appeal in the eyes of law, and an order dismissing it as time-barred is an order passed in an appeal. The Tribunal cited several Supreme Court decisions, including Nagendra Nath Dey, Raja Kulkarni, Messrs Mela Ram and Sons, Sheodan Singh, and Board of Revenue vs. M/s Raj Brothers Agencies, to support the principle that the dismissal of an appeal on a preliminary ground like limitation, when it confirms the trial court's decision, amounts to the appeal being heard and decided. Therefore, the order dated April 24, 2006, converting the appeal to a revision, was recalled. The Registry was directed to register the revision petition as a Regular Second Appeal with its original number. The case was listed for admission on May 11, 2016.

What were the facts?

The petitioner filed a Regular Second Appeal which was converted into a revision petition by the Court on April 24, 2006. The revision petition challenges an order passed by the Additional District Judge, Mandi, rejecting the petitioner's application under Section 5 of the Limitation Act. Consequently, the appeal filed by the petitioner was dismissed. The Court noted that the conversion of the appeal into a revision was not in line with a Supreme Court judgment. The Court had previously considered a similar issue in CMPMO No. 271 of 2015.

What were the issues?

1. Whether, when an application for condoning the delay in filing an appeal is dismissed, and consequently the appeal is dismissed as time-barred, the remedy available is a Regular Second Appeal under Section 100 of the CPC, or recourse to Article 227 of the Constitution. Assessee's Contention (Implicit): The petitioner's initial action of filing a revision petition suggests an argument that this was the appropriate remedy, or that the Court had the power to convert the appeal to a revision. Revenue's Contention (Implicit): The respondent's challenge to the maintainability of the petition on the ground that only a Regular Second Appeal under Section 100 of the CPC could be filed against the impugned order indicates an argument that the revision was not maintainable and a Regular Second Appeal was the sole remedy.

Which sections of the Income-tax Act were involved?

Section 5,Section 100

AI-generated summary — verify with the full judgment below

C.R. No. 52 of 2006

4.5.

2016. Present: Mr. G.R. Palsra, Advocate, for the petitioner.

Mr. Pankaj Pandit, Advocate, vice Mr. Sunil

Chauhan, Advocate, for the respondent.

The petitioner had initially filed Regular Second Appeal which was converted by this Court into a revision vide order dated 24.4.2006. The reasons for converting the appeal into a revision are self speaking, but not in tune with the judgment rendered by the Hon’ble three Judges Bench of the Hon’ble Supreme Court in Shyam Sundar Sarma vs. Pannalal Jaiswal and others (2005) 1 SCC 436. 2. This revision petition has been filed assailing the order passed by learned Additional District Judge, Mandi whereby the application under Section 5 of the Limitation Act preferred by the petitioner came to be rejected and consequently even the appeal so filed was ordered to be dismissed.

3.

This issue has already been considered by this Court in CMPMO No. 271 of 2015, wherein it was held as under:

“2. The learned Senior counsel for the respondents has questioned the very maintainability of this petition on the ground that the present petition is not maintainable as it is only by way of Regular Second Appeal under Section 100 of the CPC that the impugned order- judgment can be assailed.

I have heard the learned counsel for the parties and have gone through the records of the case.

3.

It is more than settled that ordinarily it is only in absence of specific remedy under any provision of law that a party can take recourse to article 227 of the Constitution. However, when there is a specific remedy provided by the statute, then resort to this article is not permissible.

4.

The issue regarding the remedy of appeal is no longer res integra in view of the judgment rendered by the Hon’ble three Judges’ Bench in Shyam Sundar Sarma Vs. Pannalal Jaiswal (2005) 1 SCC 436, wherein, after discussing the entire law on the subject, it was held that on the dismissal of an application moved under Section 5 of the Limitation Act, the remedy available would be a regular second appeal. It is apt to reproduce paragraphs 8 to 10 of the judgment which reads thus:

8.

The first question to be considered is whether an appeal "there is no definition of appeal in the Civil Procedure Code, but their Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate court, is an appeal within the ordinary acceptation of the term and that it is no less an appeal because it is irregular or incompetent." 8.1.These observations were referred to with approval (1952 ) 21 ITR 63 ) to the following effect: "(A)lthough the Appellate Assistant Commissioner did not hear the appeal on merits and held that the appeal was barred by limitation his order was under Section 31 and the effect of that order was to confirm the assessment which had been made by the Income-tax Officer." 9.1 was a decision in the appeal. This Court held: "We are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits, itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal."

9.2.

In Board of Revenue vs. M/s Raj Brothers appeal.”

5.

It is evident from the aforesaid observations of the Hon’ble Supreme Court that the remedy, if any, available to the petitioner is by way of a Regular Second Appeal as the necessary consequences of dismissal of the application under Section 5 entails the dismissal of the appeal itself.”.

4.

In view of the settled legal position, the order dated 24.4.2006 is recalled and the Registry is directed to register the present revision petition as Regular Second Appeal and assign it the same number as had previously been assigned to it at the time of its institution.

List for admission on 11.5.2016. (Tarlok Singh Chauhan), May 4, 2016

Judge. (GR)

More judgments on Section 5

All 847 judgments and leading authorities on Section 5 →

Recent GST High Court judgments

Search GST case law →