DEEN DAYAL GOYAL Vs. INCOME TAX APPELLATE TRIBUNAL

JUDGEMENT

(1.) Looked at in the above back ground, line of reasoning in support of the decision of Tribunal in the cases under appeal is easily discernible. Under the scheme of the Act, wherever a time limit is provided for the making of an application or the preferment of an appeal and the legislature intends that any delay in the making of such an application or preferment of such an appeal may be condoned, it says so expressly. In some situations such as in sections 146 and 154, the legislature does not presumably intend any delay being condoned at all. In other situations, such as in Ss. 249, 253 and 264, a very wide discretion to condone the delay is given to the appropriate tribunal. In yet other situations, such as in S. 256(1), there is a provision for condonation of delay but only upto a specific extent. So far as Ss. 269 G and H are concerned, the statute exprely provides that any application for condonation of delay must be preferred before the expiry of the period of 45 days, 30 days or 60 days as the case may bs. In the cases under appeal, it is common ground that the appeals as well as condonation applications were presented beyond the period mentioned in S. 269 G(l). That being so, the Tribunal held, under the scheme of the Act, it was clear that it had no power to condone the delay and the appeals had to be dismissed, even though it also found as a fact, in ITSA 4 and 5, that there was sufficient cause for the delay in the making of the application by the assessee. The question is whether this view taken by the Tribunal is correct.

(2.) To start with, there can be no quarrel with the settled proposition that a right of appeal is not an inherent right but is one that is conferred by statute and has to be exercised strictly in conformity with the statutory provisions which create it. If the statute limits the time within which an appeal can be filed, it has to be filed within the period so limited. Any power of condonation of delay in doing so has to be traceJ either to the provisions of the special statute under consideration or to the provisions of the Limitation Act, 1963. Under the Indian Income-tax Act, 1922 as well as under the 1961 Act, there have been a number of decided cases which have consistently held that a delay in the making of an application or the filing of an appeal for which a period of limitation is prescribed under the Act can be condoned only if there is a specific provision in the special Act itself enabling such condonation and that, in the absence of such a specific provision, the general provisions of the Limitation Act cannot be relied upon to seek such condonation. An extreme example of this may b; given. As pointed out earlier, S. 146 of the Income Tax Act makes no provision for condonation of delay and it has been held, quite recently and following earlier decision, that an application for setting aside an exparte assessment filed beyond the period of one month mentioned in Section 146 cannot be entertained, vide C.I.T. vs. Gupta & Sons Pvt. Ltd. (1984) 146 ITR 506. So also, u/s 66 1) of the Income-tax Act, 1922, an application seeking reference to the High Court had to be preferred before the Tribunal within 60 days of the date of service of the appellate order and there was no provision for condonation of delay. A large number of cases held that neither tlie Tribunal nor the High Court had any power to condone any delay in making such an application on any ground whatsoever. These cases are collected in footnote 15 at page 1151 of Vol. 1 of the 7th Edition of K-anga & Palkiwala on the Law & Practice of Income-tax. This line of decisions is also strongly relied upon on behalf of the Department to support the conclusion arrived at by th; Tribunal. It is argued that the Income-tax Act is a special enactment which is a completely self-contained code and it is not permissible to invoke the provisions of the Limitation Act in order to seek a relief which does not find specific mention in the Income-tax itself. [In paras 15 to 19, arguments & authorities are briefly noted and held as not relevant]

(3.) We have heard the learned counsel at great length having regard to the importance and the possibility of frequent recurrence of the issue involved. We are of the opinion that a decision on this issue should be based entirely on the interpretation to be placed on S. 269 G(l) in the context and scheme of various provisions of the Income-tax Act, 1961. In our view, it is not necessary to travel to the wider issues that were raised by the counsel for the appellant. We do not, therefore, propose to deal in detail with the provisions of the Indian Income-tax Act, 1922 and 1961 or the numerous decisions thereon which have been rendered in different context. We do not propose to dwell upon the impact of the modifications affected by S. 29 of the Limitation Act, 1963 & the corresponding provision of the earlier enactment. We do not also wish to discuss the question whether the language of the new 8.29(2) is wide enough to attract the provisions of S. 5 of the Limitation Act to proceedings not before a Court but before a Tribunal, as one possible view is that S. 29(2) only enables the application of Section 5 to appeals and applications under special or local laws but contains nothing to enlarge the applicability of S. 5 which is, on its terms, applicable only to courts. We shall assume for the purposes of these cases (i) that the provisions of Section 29(2) of the Limitation Act can be invoked for interpreting the provisions of the Income-tax Act, 1961; (ii) that this provision is attracted not only in respect of proceedings before courts but also in respect of proceedings in Tribunals like the Income-tax Appellate Tribunal; and (iii) that, therefore, the provisions of Sections 4 to 24 of the Limitation Act will apply in so far as and to the extent to which they are not expressly excluded by the provisions of the Income-tax Act, 1961.