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Manoj Ahuja and anr. Vs. Inspecting Assistant Commissioner of Income-tax, Acquisition Range - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal from Order No. 138 of 1975
Judge
Reported in(1984)43CTR(P& H)229; [1984]150ITR696(P& H)
ActsIncome Tax Act, 1961 - Sections 269F and 269G; Limitation Act, 1963 - Sections 4 to 24
AppellantManoj Ahuja and anr.
Respondentinspecting Assistant Commissioner of Income-tax, Acquisition Range
Appellant Advocate Bhagirath Dass and; Ramesh Kumar, Advs.
Respondent Advocate Ashok Bhan and; Ajay Mittal, Advs.
Cases ReferredSmt. Nirmal Khosla v. Union of India
Excerpt:
.....orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow..........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. (3) save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this act shall apply to any suit or other proceeding under any such law. (4) sections 25 and 26 and the definition of 'easement' in.....
Judgment:

Sukhdev Singh Kang, J.

1. Whether an appeal under Section 269G of the I.T. Act, 1961 ('the Act' for short), filed against the order of the acquisition of immovable property made by the competent authority under Section 269F of the Act can be admitted after the period of limitation prescribed for such an appeal, if the appellant satisfies the Appellate Tribunal that he had sufficient cause for not preferring the appeal within time, is the short but meaningful question raised in this first appeal from order. Equally at issue is the legality and validity of the order dated March 24, 1975, of the Appellate Tribunal, dismissing the appellant's appeal as time-barred.

2. A brief survey of the pertinent facts will illumine the contours of the forensic controversy :

Sarvshri Manoj Ahuja and Sanjay Ahuja, the present appellants, purchased House No. 85, Sector 8-A, Chandigarh. The competent authority made an order dated November 4, 1974, for the acquisition of this property under Sub-section (6) of Section 269F of the Act.

3. The appellants, who are minors, filed an appeal under Section 269G of the Act against this order of the competent authority through Shri H. K. Ahuja, their father and guardian, on December 28, 1974. As mentioned earlier, the order was made on November 4, 1974, and a copy of the said order was served on the appellants on November 24, 1974. The limitation for filing an appeal under Clause (a) of Sub-section (1) of Section 269G of the Act was 30 days from the date of service of the copy of the order on the appellants. Since the appeal was filed after the period of limitation, the appellants filed an application under Section 5 of the Limitation Act, 1963, for the condonation of delay in presenting the appeal. The Appellate Tribunal dismissed this application as also the appeal, vide orders dated March 24, 1975, on two grounds :

(a) that the application for condonation of delay was not competent because under the proviso to Section 269G(1) of the Act, such an application should be made before the period for filing the appeal had expired; and

(b) that Shri H. K. Ahuja, the father and natural guardian of appellants, is an advocate and he had been attending the proceedings before the competent authority on behalf of the appellants from time to time. Under these circumstances, it was difficult to hold that Shri H. K. Ahuja was unaware of the provisions of law relating to limitation.

4. Aggrieved, the appellants have filed the present appeal. It will be helpful to read the various relevant statutory provisions at the very threshold :

The Limitation Act, 1963 :

'Section 5. Extension of prescribed period in certain cases.--Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation.--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.'

' Section 29. Savings.--(I) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872.

(2) 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.

(3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.

(4) Sections 25 and 26 and the definition of 'easement' in Section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882, may for the time being extend.'

Income tax Act, 1961 :

'269G. (1) An appeal may be preferred to the Appellate Tribunal against the order for the acquisition of any immovable property made by the competent authority under Section 269F,--

(a) by the transferor or the transferee or any other person referred to in Sub-section (8) of that section, within a period of forty-five days from the date of such order or a period of thirty days from the date of service of a copy of the order on such person under the said sub-section, whichever period expires later;

(b) by any other person interested in such immovable property, within forty-five days from the date of such order: Provided that the Appellate Tribunal may, on an application made in this behalf before the expiry of the said period of forty-five days or, as the case may be, thirty days, permit, by order, the appeal to be presented within such further, period as may be specified therein if the applicant satisfies the Appellate Tribunal that he has sufficient cause for not being able to present the appeal within the said period of forty-five days or, as the case may be, thirty days.'

5. Chapter XXA of the Act, which includes Section 269G, ibid, inserted in the Act by the Taxation Laws (Amendment) Act, 1972, with effect from November 15, 1972, provides for acquisition of immovable properties in certain cases of transfer to counteract evasion of tax. Clauses (a) and (b) of Sub-section (1) of Section 269G of the Act prescribe the limitation for filing appeals againstthe orders of the competent authority in different situations. By a proviso to these clauses, a provision has been made for making an application to the appellate authority before the expiry of the prescribed period of limitation for permission to file an appeal beyond the period of limitation, A provision like it is not found in many Acts. An opportunity has been provided to the persons aggrieved against the orders of the competent authority for seeking prior permission in appropriate cases to file an appeal beyond the period of limitation. There is no provision in the Act expressly excluding the application of the provisions contained in Sections 4 to 24 (inclusive) of the Limitation Act to proceedings under this Act. Section 29 of the Limitation Act in clear terms posits that where any special or local law prescribes a period of limitation for any appeal, application, et cetera, different from the period prescribed in the Schedule to the Limitation Act, the provisions contained in Sections 4 to 24 (inclusive) of the Limitation Act shall be applicable for the purpose of determining the period of limitation prescribed for such appeal, application, et cetera. Thus Section 5 of the Limitation Act is applicable to the proceedings under the Act. It relates to the determination of the period of limitation prescribed for the appeals and its application has not been expressly excluded by the Act, A FullBenchof this court in Bharat Rubber & Allied Industries v. State of Punjab [1980] 46 STC 367 has held that the provisions of Section 5 of the Limitation Act are applicable to an appeal filed under the provisions of the Punjab General Sales Tax Act. It was observed (p. 369):

'It is, however, contended by Mr. Manchanda that the U.P. Sales Tax Act constitutes a complete code in itself and as that Act prescribes the period of limitation for filing of a revision petition, the High Court was in error in relying upon the provisions of Sub-section (2) of Section 12 of the Limitation Act, 1963. This contention, in our opinion, is wholly bereft of force......There can be no manner of doubt that the U.P. Sales Tax Actanswers to the description of a special or local law. According to Sub-section (2) of Section 29 of the Limitation Act, reproduced above, for the purpose of determining any period of limitation prescribed for any application by way special or local law, the provisions contained in Section 12(2), inter alia, shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law. There is nothing in the U.P. Sales Tax Act expressly excluding the application of Section 12(2) of the Limitation Act for determining the period of limitation prescribed for a revision application. The conclusion would, therefore, follow that the provisions of Section 12(2) of the Limitation Act of 1963 can be relied upon in computing the period of limitation prescribed for filing a revision petition under Section 10 of the U.P. Sales Tax Act.'

6. Reliance was placed by the Full Bench on a decision of the final court in CST v. Madan Lal Das & Sons [1976] 38 STC 543. Therein, their Lordships were examining the proposition as to whether the provisions of Sub-section (2) of Section 12 of the Limitation Act were applicable to an appeal under the provisions of the Uttar Pradesh Sales Tax Act. An argument was raised, on. behalf of the Revenue, that the Uttar Pradesh Sales Tax Act was a complete code in itself when it provided a limitation for filing revision petitions and no provision was made therein for allowing the time spent in obtaining the certified copies of the impugned orders to be excluded while computing the period of limitation. This argument was repelled.

7. A similar view was taken by a Division Bench of this court in Piare Lal Khushbakhat Rai v. State of Punjab [1971] 27 STC 398. The I.T. Act is also a special Act like the Punjab General Sales Tax Act. The ratio of these two decisions is fully applicable to the proceedings under the Act.

8. In view of the clear enunciation of law in the above two cases, we cannot accept the contrary view propounded by the Patna High Court in IAC of Income-tax (Acquisition) v. Kedar Nath Jhunjhunwalla : [1982]133ITR746(Patna) . We are of the considered view that the provisions of Section 5 of the Limitation Act are fully applicable to the appeals filed under Section 269G of the Act.

9. The Appellate Tribunal has held that the application under Section 5 of the Limitation Act for condonation of delay made on February 13, 1975, was not competent because such an application for late filing of the appeal had to be filed by the appellants before the period of limitation for filing the appeal expires. Since this application had been filed beyond the period of limitation, it could not be entertained and the same was dismissed. The conclusions of the Appellate Tribunal on this aspect of the case are, if we may say so with respect, based on a total misconception of law and facts. It is clearly mentioned in the application dated February 13, 1975, that it is being moved under Section 5 of the Limitation Act, read with Section 151, Civil Procedure Code. This was not an application under Section 269G(1) of the Act. The Tribunal has not considered as to whether the provisions of Section 5 of the Limitation Act were applicable to the appeal or not. Section 269G(1) of the Act or for that matter any other section of the Act does not in terms exclude the application of the provisions of Sections 4 to 24 (inclusive) of the Limitation Act to the applications, appeals, et cetera filed under the various provisions of the Act. The proviso to Clauses (a) and (b) of Sub-section (1) of Section 269G of the Act was not invoked in the application and are not applicable to the present case and the application could be dismissed only because it was filed after the expiry of the period of limitation.

10. The Appellate Tribunal was fully aware that the appellants before them were minors. It is axiomatic that the court is the guardian of minors. It is the duty of every court and the Tribunal to protect and safeguard the interests of minors, of course, within the four walls of law. Shri H.K. Ahuja filed the appeal on behalf of the appellants and also moved an application under Section 5 of the Limitation Act for condonation of delay. If a guardian, who also happens to be an advocate, makes a mistake in understanding and applying the law of the land, the interests of the minors cannot be allowed to suffer on that score.

11. Shri H. K. Ahuja has averred in the application for condonation of delay that the acquisition proceedings were undertaken under Chapter XXA of the Act, which had been incorporated in the Act towards the end of 1972. It was a recent enactment. He was under the bona fide impression that the limitation for filing an appeal against the orders of the IAC of Income-tax is 60 days. In the present case, the order was passed by the IAC of Income-tax though performing the duties and functions of a competent authority under the Act. It seems that for this reason Shri H. K. Ahuja was under a mistaken notion that the limitation for filing an appeal against the order of the competent authority was also 60 days.

12. It is now well recognised that no litigant should ordinarily suffer for a mistake of his counsel. If any authority for this proposition is needed, reference may be made to a Division Bench judgment of this court in Smt. Nirmal Khosla v. Union of India . In that case, because of the wrong calculation made by a counsel, the appeal had been filed beyond limitation. The Bench condoned the delay in filing the Letters Patent Appeal.

13. As a result, we allow the appeal and set aside the order dated March 24, 1975, of the Appellate Tribunal, and allow the application for condonation of delay and remit the appeal to the Appellate Tribunal for fresh decision on merits. The respondents shall pay the appellants costs which are assessed at Rs. 500.


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