Skip to content


Commissioner of Income-tax Vs. Gupta and Sons Pvt. Ltd. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Civil Case No. 246 of 1980
Judge
Reported in(1983)36CTR(MP)112; [1984]146ITR506(MP)
ActsIncome-tax Act, 1961 - Sections 146 184(4), 249(3), 253(5) and 156(1); Limitation Act, 1963 - Sections 5
AppellantCommissioner of Income-tax
RespondentGupta and Sons Pvt. Ltd.
Appellant AdvocateR.C. Mukati, Adv.
Respondent AdvocateG.M. Chaphekar, ;U. Thatte and ;Mahajan, Advs.
Cases ReferredPrem Nath L. Ganesh v. Prem Nath L. Ram Nath
Excerpt:
- - in the first place, the provisions of section 12(2) of the limitation act are quite wide in their ambit and are applicable to appeals against orders passed not only by courts, but by special tribunals and authorities constituted under different acts as well. an enactment being the will of the legislature, the paramount rule of interpretation, which overrides all others, is that a statute is to be expounded 'according to the intent of them that made it'.the will of the legislature is the supreme law of the land, and demands perfect obedience '(see maxwell on the interpretation of statutes, 11th edn......of the provisions contained in section 5 of the limitation act relating to condonation of delay to applications or appeals under the i.t. act, 1961, a specific provision was made in that case. this is evident from a perusal of the provisions of section 184(4), section 249(3), section 253(5) and section 256(1) of the act. therefore, as regards the powers to condone delay under the act if sufficient cause is shown, the conclusion is irresistible that the legislature intended the i.t. act, 1961, to be a complete code by itself, so far as the question of condoning delay by the authorities in making applications by the assessees within the time prescribed by the various provisions of that act. in our opinion, therefore, the scheme of the i.t. act, 1961, excludes the operation of.....
Judgment:

Sohani, J.

1. By this reference under 's. 256(1) of the I.T. Act, 1961 (hereinafter referred to as 'the Act'), the Income-tax Appellate Tribunal Indore Bench, has referred the following question of law to this court for its opinion:

'When there is no specific provision under the Income-tax Act, 1961, enabling the Income-tax Officer to condone the delay in making an application under Section 146, whether the Tribunal was right in law in applying the provisions of Section 5 of the Limitation Act ?'

2. Material facts giving rise to this reference briefly are as follows:

The assessee is a private limited company and the assessment year in question is 1975-76. The notice of demand under Section 156 of the Act was served upon the assessee on March 28, 1978. The assessee filed an application on May 2, 1978, under Section 146 of the Act for reopening the assessment, but as the application was not filed within one month from the date of service of the notice of demand, a prayer was made for condonation of delay. Reliance was placed by the assessee on the provisions of Section 5 of the Limitation Act. The ITO held that the provisions of Section 5 of the Limitation Act were not applicable and hence the prayer for condonation of delay was rejected. On appeal, the AAC held that it was a fit case where the delay should have been condoned under the provisions of Section 5 of the Limitation Act. Aggrieved by that order, the Department preferred an appeal before the Tribunal. The Tribunal upheld the order of the AAC and held that the assessee was entitled to the benefit of the provisions of Section 5 of the Limitation Act. In this view of the matter, the Tribunal dismissed the appeal. Aggrieved by the order passed by the Tribunal, the Department sought a reference and it is at the instance of the Department thatthe aforesaid question of law has been referred to this court for its opinion.

3. Shri Mukati, the learned counsel for the Department, contended that, under the scheme of the I.T. Act, 1961, whenever it was thought fit to confer power on the authorities for condonation of delay, a specific provision was made in that behalf. Our attention was invited to the provisions of Section 184(4), Section 249(3), Section 253(5) and Section 256(1) of the Act. Reliance was also placed on the decision in CIT v. Western India Engineering Co. Ltd. : [1970]77ITR165(Guj) . In reply, Shri Chaphekar, the learned counsel for the assessee, contended that the provisions of Section 29(2) of the Limitation Act, 1963, were attracted and the decision of the Supreme Court referred to in : [1970]77ITR165(Guj) , turned on the question as to whether the Schedule to the Limitation Act which was applicable to applications made to courts governed either by the CPC or the Cr. PC, could be made applicable to applications made to Tribunals and authorities under other Acts. It was urged that the decision in : [1970]77ITR165(Guj) , could not, therefore, be construed as an authority for the proposition that the provisions of Section 5 of the Limitation Act were not applicable to applications made under the I.T. Act, 1961. Reliance was also placed on the decision of the Supreme Court in Commissioner of Sales Tax v. Madan Lal Das & Sons [1976] 38 STC 543.

4. To appreciate the contentions advanced before us, it would be useful to refer to the provisions of 29(2) of the Limitation Act, 1963. That provision reads as under :

'Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent, to which, they are not expressly excluded by such special or local law.'

5. From a perusal of the aforesaid provision, it is clear that the provisions of Section 29(2) of the Limitation Act will apply to appeals and applications filed under a special law, if the schedule of the special law does not exclude its application. It has been held by the Supreme Court in Hukumdev Narain Yadav v. Lalit Narain Mishra, AIR 1974 SC 480, that even in a case where a special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act, by an express reference, it would none the less 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 the scheme of the special law exclude their operation.

6. Now, from the scheme of the I.T. Act, 1961, it would be clear that whenever the Legislature intended the applicability of the provisions contained in Section 5 of the Limitation Act relating to condonation of delay to applications or appeals under the I.T. Act, 1961, a specific provision was made in that case. This is evident from a perusal of the provisions of Section 184(4), Section 249(3), Section 253(5) and Section 256(1) of the Act. Therefore, as regards the powers to condone delay under the Act if sufficient cause is shown, the conclusion is irresistible that the Legislature intended the I.T. Act, 1961, to be a complete code by itself, so far as the question of condoning delay by the authorities in making applications by the assessees within the time prescribed by the various provisions of that Act. In our opinion, therefore, the scheme of the I.T. Act, 1961, excludes the operation of Section 5 of the Limitation Act, 1963. We find this view supported by the decision in Commr. of Agrl. I.T. v. Thalayar Rubber Industries Ltd. : [1981]131ITR162(Ker) and IAC v. Kedar Nath Jhunjhunwalla : [1982]133ITR746(Patna) . The decision of the Supreme Court in [1976] 38 STC 543 (Commr. of Sales Tax v. Madan Lal Das & Sons), dealing with the applicability of the provisions of Section 12 of the Limitation Act, 1963, to the U.P. Sales Tax Act is distinguishable. In the first place, the provisions of Section 12(2) of the Limitation Act are quite wide in their ambit and are applicable to appeals against orders passed not only by courts, but by special tribunals and authorities constituted under different Acts as well. Secondly, it is obvious from the judgment of the Supreme Court in [1976] 38 STC 543, that in that case the Supreme Court rejected the contention that the U.P. Sales Tax Act constituted a complete code in itself in the matter of applicability of the provisions of Section 12(2) of the Limitation Act. In this connection, we may usefully refer to the following observations of the Supreme Court in Commr. of Sales Tax v. Parson Tools and Plants : [1975]3SCR743 :

'Be that as it may, from the scheme and language of Section 10, the intention of the Legislature to exclude the unrestricted application of the principles of sections 5 and 10 of the Limitation Act is manifestly clear. These provisions of the Limitation Act, which the legislature did not, after due application of mind, incorporate in the Sales Tax Act, cannot be imported into it by analogy. An enactment being the will of the legislature, the paramount rule of interpretation, which overrides all others, is that a statute is to be expounded 'according to the intent of them that made it'. 'The will of the legislature is the supreme law of the land, and demands perfect obedience '. (See Maxwell on the Interpretation of Statutes, 11th Edn., pp. 1, 2 and 25). 'Judicial power is never exercised', said Marshall C.J. of the United States, 'for the purpose of giving effect to thewill of the Judges, always for the purpose of giving effect to the will of the Legislature; or in other words, to the will; of the law'.

If the legislature Wilfully omits to Incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in astatute, the language of which is otherwise plain and unambiguous, thecourt is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation by analogy or implication,something what it thinks to be a general principle of justice and equity,'To do so--(at p. 65 in Prem Nath L. Ganesh v. Prem Nath L. Ram Nath, per Tek Chahd J.) would be entrenching upon thepreserves of legislature', the primary function of a court, of law beingjus dicere and not jus dave.'

7. In our opinion, therefore, the Tribunal was. not justified in holding that the provisions of Section 5 of the Limitation Act, 1963, were attracted in the case of an application filed under Section 146 of the Act.

8. For all these reasons, our answer to the question referred to this court is in the negative and against the assessee. In the circumstances of the case, parties shall bear their own costs of this reference.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //