Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • S A Ahmad
Acts
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • S A Ahmad
Acts
See more information ...
Smart Summary

Judgment Summary (S. Ali Ahmad, J.) — Appeal under Section 269H of the Income-tax Act

Factual and Procedural Background

This appeal under Section 269H of the Income-tax Act (the Act) was filed on 6 November 1980 against an order dated 18 August 1980 passed by the Income-tax Appellate Tribunal under Section 269G. The Appellate Tribunal had sent a copy of its order to the appellant on 6 September 1980. The stamp reporter calculated the last date for filing the appeal as 5 November 1980 (60 days from 6 September) and reported the appeal as barred by limitation because it was filed on 6 November 1980.

The appellant (IAC (Acquisition)) filed an application under Section 5 of the Limitation Act to condone the one-day delay; this application was opposed by the respondent. The appellant also relied on the fact that it applied for a certified copy on 29 October 1980 and obtained it on 30 October 1980, and argued that the time spent obtaining the certified copy should be added to the 60-day period under the Limitation Act (Section 12(2)), through applicability of Section 29(2) of the Limitation Act.

The High Court considered whether the Limitation Act's provisions (notably Section 29(2), Section 12(2) and Section 5) applied to appeals under Section 269H of the I.T. Act and whether the one-day delay could be condoned. The court heard evidence and material concerning the filing chronology and statements in the limitation petition, including conflicting accounts about the date the memorandum of appeal was taken from the stamp reporter (5 November vs. 6 November). The court recorded factual findings regarding these statements and the conduct of counsel and their clerks.

Legal Issues Presented

  1. Whether Section 29(2) of the Limitation Act is applicable to appeals under Section 269H of the Income-tax Act (i.e., whether the time taken in obtaining a certified copy is to be added to the period of limitation under Section 12(2) of the Limitation Act).
  2. Whether the appeal filed on 6 November 1980 was within the period of limitation prescribed by Section 269H of the Act.
  3. Whether the High Court can condone the one-day delay in filing the appeal under Section 5 of the Limitation Act.
  4. Whether principles or provisions of the Limitation Act (or civil procedural provisions such as Order 41 CPC) can be imported or applied by analogy to appeals under Section 269H where the special statute provides its own limitation and extension machinery.

Arguments of the Parties

Appellant's Arguments (as presented in the opinion)

  • The stamp reporter's computation was erroneous and the appeal was filed within time.
  • Section 29(2) of the Limitation Act applies to appeals under Section 269H of the Act, and therefore the two days spent obtaining a certified copy (application 29 Oct, obtained 30 Oct) should be added under Section 12(2) of the Limitation Act, making the last date 7 November 1980 and the appeal (filed 6 November) in time.
  • An application under Section 5 of the Limitation Act should be entertained to condone the one-day delay; the delay arose because counsel believed a certified copy had to accompany the memorandum and due to office lapses (and initially alleged illness of the advocate's clerk).
  • The appeal under Section 269H is civil in character and provisions such as Order 41, Rule 1 of the CPC (requiring a copy of the judgment on which the appeal is founded) apply, thus supporting the need to obtain and file a certified copy.

Respondent's Arguments (as presented in the opinion)

  • The appeal was barred by limitation and should be dismissed on that ground.
  • The application under Section 5 of the Limitation Act to condone delay should be dismissed (i.e., Section 5 does not apply to appeals under Section 269H).
  • The time spent in obtaining a certified copy should not be excluded for limitation purposes, particularly because the impugned order was passed by a Tribunal rather than a court (argument advanced but not accepted by the Court).
  • The respondent challenged the factual statements in the limitation petition (denying the illness of the clerk, and producing office information that the memorandum was taken from the stamp reporter on 5 November 1980), and accused an attempted interpolation in a register; the respondent relied on the High Court office record showing the memorandum was taken on 5 November.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Hukumdev Narain Yadav v. Lalit Narain Mishra, AIR 1974 SC 480 Illustrates that a special statute (Representation of the People Act, 1951) may constitute a complete code, excluding operation of the Limitation Act despite no express exclusion; courts can examine the scheme to infer such exclusion. The Court observed this case does not help the appellant's position (i.e., it supports the proposition that a special law can be a complete code excluding Limitation Act provisions when the scheme so indicates).
Commissioner of Sales Tax v. Madan Lal Das & Sons, [1976] 38 STC 543; AIR 1977 SC 523 Holds that where a special law (U.P. Sales Tax Act in that case) is not a complete code, provisions like Section 12(2) of the Limitation Act may apply and the time spent obtaining certified copies can be excluded in computing limitation. The appellant relied on this case to argue exclusion of time spent in obtaining a certified copy. The Court reviewed the ratio and concluded that the case does not establish a universal rule that whenever a certified copy is obtained the time must be excluded; applicability depends on whether the special law excludes the Limitation Act.
Commissioner of Sales Tax v. Parson Tools and Plants, [1975] 35 STC 413; AIR 1975 SC 1039 Principle that provisions of the Limitation Act not incorporated into a special enactment cannot be imported into that enactment by analogy; courts should not supply omissions in the statute under guise of interpretation. The Court relied on this principle to reject the appellant's submission that Limitation Act provisions (or their spirit) should be imported into Section 269H by analogy.
Bokaro and Ramgur Ltd. v. Kathara Coal Co. Ltd., AIR 1969 Patna 235 Used to show that procedural provisions of the CPC (e.g., Order 41) are not to be applied to statutory appeals absent express or implied incorporation; absence of analogous statutory provision precludes application. The Court applied the reasoning to conclude that Order 41 CPC does not apply to appeals under Section 269H because the Act does not make CPC provisions applicable expressly or by necessary implication.

Court's Reasoning and Analysis

The court proceeded step-by-step in its legal analysis:

  1. Limitation computation: The Tribunal's copy was served on 6 September 1980; Section 269H allows 60 days from service, which yields 5 November 1980 as the last day. The appeal was filed on 6 November 1980 and therefore prima facie barred.
  2. Certified copy issue and Section 29(2): The appellant argued that because it applied for and obtained a certified copy (application 29 Oct, obtained 30 Oct), two days should be added under Section 12(2) of the Limitation Act via the operation of Section 29(2). The critical legal question became whether Section 29(2) of the Limitation Act applies to appeals under Section 269H.
  3. Examination of Limitation Act provisions and precedents: The court reviewed Supreme Court decisions showing that whether Limitation Act provisions apply depends on whether the special statute constitutes a complete code excluding them. The Hukumdev Narain Yadav case exemplified a statute (Representation of the People Act) that was a complete code; the Madan Lal Das case exemplified when a special statute was not a complete code and Limitation Act rules could apply.
  4. Analysis of Chapter XX-A (Sections 269D–269H) of the I.T. Act: The court analyzed the specific provisions of Chapter XX-A:
    • Section 269G provides defined periods for appeal to the Appellate Tribunal and authorises the Tribunal to allow extensions within specified periods (sub-section (1)).
    • Section 269G(5) permits the Tribunal to rectify mistakes apparent on record within 30 days of the order.
    • Section 269G(6) imposes an obligation on the Tribunal to send a copy of its order to the appellant and the Commissioner.
    • Section 269G(8) directs that appeals be disposed of expeditiously and that every effort be made to dispose of appeals within 90 days of presentation (though directory in nature).
    • Section 269H prescribes a 60-day period to appeal to the High Court and contains a proviso allowing the High Court, on application before expiry, to extend the period for sufficient cause.
    The court inferred that this statutory scheme, which prescribes limitation periods and provides a built-in mechanism for extension (if an application is made before expiry), manifests an intention that Chapter XX-A operate as a complete code for the matters it covers.
  5. Conclusion on applicability: Reading Sections 269G and 269H together, the court concluded the chapter provides the exclusive mechanism for limitation and extension and thus excludes Section 29(2) of the Limitation Act. As Section 29(2) is excluded, the consequential application of Section 12(2) and Section 5 of the Limitation Act to appeals under Section 269H was held not to apply.
  6. Arguments on importing Limitation Act or CPC procedure rejected: The court rejected the appellant's submissions that Limitation Act principles should be imported by analogy (relying on Parson Tools) and that Order 41 CPC applies to the statutory appeal; absent express or implied statutory incorporation, CPC provisions do not apply.
  7. Factual findings on the limitation petition: The Court noted discrepancies in the limitation petition (false plea about clerk's illness and incorrect dates). On inquiry, counsel conceded misstatements and accepted that the memorandum had in fact been taken from the stamp reporter on 5 November 1980. The Court nevertheless accepted that junior standing counsel genuinely believed a certified copy needed to be filed and that office lapses occurred; the judge stated he would have condoned a one-day delay for such lapses but was precluded from doing so because Section 5 of the Limitation Act does not apply to Section 269H appeals.

Holding and Implications

Holding:

DISMISSED AS BARRED BY LIMITATION

Explanation of the holding (direct effect):

  • The court held that Chapter XX-A of the Income-tax Act (including Sections 269G and 269H) constitutes a complete code governing limitation and extension for appeals under that chapter and therefore excludes Section 29(2) of the Limitation Act.
  • Consequently, Section 12(2) of the Limitation Act (which could have allowed exclusion of time spent obtaining a certified copy) and Section 5 of the Limitation Act (for condoning delay) do not apply to appeals under Section 269H.
  • The application under Section 5 of the Limitation Act to condone one day's delay was dismissed as not maintainable, and the memorandum of appeal was dismissed as barred by limitation.

Broader implications: The opinion confines its effect to the appeal before the court and explains the statutory reasoning for treating Chapter XX-A as a self-contained code. The judgment does not purport to establish a new general rule beyond the court's interpretation that the specific statutory scheme of Chapter XX-A excludes the Limitation Act provisions relied upon by the appellant.

Dissent/Concurrence: Lalit, J. recorded concurrence with the judgment ("I agree.").

Show full summary ...

    Inspecting Assistant Commissioner Of Income Tax Acquisition v. Kedar Nath Jhunjhunwalla

    JUDGMENT S. Ali Ahmad, J.

    1. This appeal under Section 269H of the I.T. Act was filed on November 6, 1980, against an order dated August 18, 1980, passed by the Income-tax Appellate Tribunal under Section 269G of the I.T. Act (hereinafter to be referred to as "the Act"). According to the stamp reporter, the last date of limitation for filing the appeal was Novembers, 1980, but since it was filed on November 6, 1980, it was barred by limitation. The office placed the limitation matter for orders.

    2. Mr. Rajgarhia, learned counsel appearing for the appellant, namely, the IAC (Acquisition), contended that the stamp report was erroneous and that the appeal was filed well within time. Mr. Shreenath Singh, learned counsel for the respondent, on the other hand, contended that the appeal was barred by limitation and, therefore, it should be dismissed as such. During the course of arguments, Mr. Rajgarhia filed an application under Section 5 of the Limitation Act praying to condone the delay of one day in filing the appeal on the grounds mentioned in that application. Mr. Shreenath Singh opposed this application also. In these circumstances, it is, necessary to consider as to whether the appeal was filed within the period of limitation or not and in case it was filed beyond the period of limitation then as to whether the delay of one day in filing the appeal can be condoned.

    3. As I have said above, the appeal is directed against an order dated August 18, 1980. Section 269H(1) of the Act, inter alia, provides that an appeal may be preferred to the High Court within 60 days of the date on which the appellant is served with a notice of the order under Section 269G of the Act. Admittedly, the Appellate Tribunal sent a copy of the order passed by it to the appellant on September 6, 1980. In case 60 days are added to 6th September, 1980, then we get November 5, 1980. The stamp reporter on the basis of this calculation has said that the last date of limitation was November 5, 1980 and, as such, the appeal which was filed on November 6, 1980, is barred by limitation. It, however, appears that an application for a certified copy was filed by the appellant on 29th October, 1980, and the same was obtained on 30th October, 1980. Mr. Rajgarhia on that basis contends that two days time should be added as the time requisite for obtaining the certified copy of the order to the period of limitation which is 60 days. He contended that in case it was done then the last date of limitation was November 7, 1980, and since the appeal was filed on November 6, 1980, it should be held to be well within time. The question, therefore, for determination is as to whether Section 29(2) of the Limitation Act is applicable to an appeal under Section 269H of the Act.

    4. Section 29(2) of the Limitation Act, inter alia, provides that for the purpose of determining the period of limitation prescribed for an appeal 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. In case Sub-section (2) of Section 29 of the Limitation Act is applicable to appeals under Section 269H of the Act then it is patent that a period of two days, the time spent in obtaining the certified copy of the impugned order, has to be added to the period of limitation under Section 12(2) of the Limitation Act and if that is done, the appeal is within time. Arguments, therefore, have been advanced by the parties about the applicability of Section 29(2) of the Limitation Act.

    5. According to Mr. Rajgarhia, the I.T. Act, or Section 269H of the Act, does not expressly exclude the application of any of the provisions of the Limitation Act. According to learned counsel, therefore, Section 12 and also Section 5 of the Limitation Act apply in full to this appeal. Reliance has been placed on the decision of the Supreme Court in the case of Hukumdev Narain Yadav v. Lalit Narain Mishra, AIR 1974 SC 480. In that case, an election petition was filed beyond the period of limitation prescribed by the Representation of the People Act, 1951. An application under Section 5 of the Limitation Act was filed to condone the delay and it was contended before the Supreme Court that since the provisions of the Limitation Act were not "expressly excluded" the delay in filing the election petition could be condoned under Section 5 of the Limitation Act. The learned judges, on a consideration of the matter, held that the scheme of the special law (the Representation of the People Act, 1951) and the nature of the remedy provided therein were such which led to the inference that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. They also held that even in cases where the special law did not exclude the provision 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 special law exclude their operation. Thereafter, on examination of the different provisions of the Representation of the People Act, 1951, it was found that it was a code in itself and its scheme excluded the operation of the Limitation Act. This case, therefore, does not help Mr. Rajgarhia.

    6. Mr. Rajgarhia next strongly relied on the decision of the Supreme Court in the case of Commr. of Sales Tax v. Madan Lal Das & Sons [1976] 38 STC 543 ; AIR 1977 SC 523. In this case, it appears that the copy of the order served on the assessee was lost. He, therefore, obtained a certified copy arid then filed a revision application under Section 10 of the U.P. Sales Tax Act. The revision application was filed beyond the period of limitation, but if the time taken in obtaining the certified copy was excluded under Section 12(2) of the Limitation Act, then the revisional application was in time. The matter ultimately went to the Supreme Court and the learned judges held that although it was not necessary to file a certified copy of the impugned order along with the petition of revision, yet it was necessary to have a copy of the order as the petitioner or his legal adviser could not have been in a position to decide as to whether the revision petition should be filed against that order and, if so, that ground should be taken in the revision petition. It also appears that in this case a copy of the order was served on the petitioner but the same was lost and, as such, he applied for a certified copy. It was urged before the. Supreme Court that in such a situation the time spent in obtaining the certified copy should not be excluded. This argument was repelled by saying that

    "the loss of that copy necessitated the filing of an application for obtaining another copy of the order of the Assistant Commissioner"
    . Relying on these observations, Mr. Rajgarhia urged that he also has filed the certified copy which he obtained on 30th October, 1980, along with his memorandum of appeal and, as such, the time spent in obtaining that copy should be excluded. I do not think, the ratio of the case is that whenever a certified copy is obtained, the time spent in obtaining the same should be excluded. Paragraph 2 of the judgment indicates that it was argued before the Supreme Court that the U. P. Sales Tax Act constituted a complete code in itself and since the Act prescribes the period of limitation for filing of a revision petition, no time could be extended under Section 12(2) of the Limitation Act. This contention in the same paragraph was rejected meaning thereby that the U. P. Sales Tax Act was not a complete code in itself and, as such, the provision of Section 12(2) of the Limitation Act applied.

    7. On the basis of the two aforesaid decisions of the Supreme Court, it is manifest that Section 29(2) of the Limitation Act will apply to appeals and applications filed under a special law if the scheme of the special law does not exclude its application. I, therefore, turn to the provision of the Act to find out as to whether the provisions of the Limitation Act have been excluded under its scheme. Chapter XX-A of the Act was introduced with effect from 15th November, 1972, with the object of acquiring immovable properties in certain cases of transfer to counteract evasion of tax. This chapter, inter alia, provides that if the authorities have reason to believe that any immovable property of a fair market value exceeding twenty-five thousand rupees has been transferred by a person for an apparent consideration which is less than the fair market value of the property and that the consideration for such transfer as agreed to between the parties has not been truly stated in the instrument of transfer with the object, inter alia, of, facilitating the concealment of any income or any moneys or other assets which have not been or which ought to be disclosed by the transferee for the purpose of the Indian I.T. Act, 1922, or the W.T. Act, 1957, then the competent authority may initiate proceedings for the acquisition of such properties under this chapter. Where the proceedings are so initiated, notice has to be given under Section 269D of the Act. In case an objection is raised, then after hearing the parties, the competent authority may in accordance with the provisions of Section 269F dispose of the matter. In case, however, he is satisfied that the consideration for the transfer as agreed to between the parties has not been truly stated in the instrument of transfer then he may after seeking the approval of the Commissioner make an order for the the acquisition of the property under this chapter. Section 269G of the Act enables the person mentioned in the section to file an appeal to the Appellate Tribunal against the order for acquisition of any immovable property made by the competent authority under Section 269F within a period of 45 days from the date of such order or a period of 30 days from the date of service of the copy of the order on the appellant whichever period expires later and by any other person interested in the immovable property within 45 days of the date of such order. Sub-section (1) of this section further provides that the Appellate Tribunal may before the expiry of 30 days or 45 days, as the case may be, permit 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 45 days or, as the case may be, 30 days. Thereafter, Sub-section (5) of this section gives the Appellate Tribunal a power to rectify any mistake apparent from the record and amend the order passed by it at any time within 30 days from the date of the order. Sub-section (6) of this section is quite important. It creates an obligation on the Appellate Tribunal to send a copy of the order passed under this section to the appellant and to the Commissioner. Again, Sub-section (8) provides that the appeal shall be disposed of as expeditiously as possible and endeavour shall be made to dispose of every such appeal within 90 days from the date on which it is presented. The provision to dispose of the appeal within 90 days from the date of presentation, although directory in nature, speaks a lot about the intention of speedy disposal by the Legislature and that is quite understandable. Delay in disposal of revenue matters, as pointed out by the Supreme Court in the case of Commissioner of Sales Tax v. Parson Tools and Plants [1975] 35 STC 413 (SC); AIR 1975 SC 1039, adversely affects the steady inflow -of the revenues and the financial stability of the State. The next section in the Chapter is Section 269H which empowers the Commissioner or any person aggrieved by an order of the Appellate Tribunal under Section 269G to file an appeal to the High Court within 60 days of the date on which he is served with the notice of the order under that section on any question of law. Proviso to this section is an indicator of the scheme of things. I, therefore, quote it, which is as follows :

    "Provided that the High Court may, on an application made in this behalf before the expiry of the said period of sixty days, permit, by order, the appeal to be presented within such further period as may be specified therein, if the applicant satisfies the High Court that he has sufficient cause for not being able to present the appeal within the said period of sixty days."

    8. A perusal of the proviso shows that the appeal must be filed within a period of 60 days of the date on which the copy of the order is served under Sub-section (6) of Section 269G of the Act. In case, however, the person aggrieved thinks that he will not be able to present the appeal to the High Court within 60 days then he must before the expiry of that period file an application before the High Court praying to extend the period of 60 days and the High Court on being satisfied that sufficient cause has been shown may extend the period by the specified time and the appeal must be presented before the expiry of the time so extended. Reading Sections 269G and 269H together leads me to the conclusion that the provisions in this Chap. XX-A of the Act is a code in themselves inasmuch as they provide not only the period of limitation but also excludes the application of Section 29(2) of the Limitation Act. As a result of exclusion of Section 29(2) of the Limitation Act, it is obvious that neither the provision of Section 5 nor that of s, 12(2) of the Limitation Act will apply to appeals filed under Section 269H of the Act.

    9. Mr. Rajgarhia also faintly suggested that the principle of Limitation Act should be imported into Section 269H of the Act. This argument also cannot be accepted. A similar argument was advanced in the case of Commr. of Sales Tax v. Parson Tools and Plants [1975] 35 STC 413; AIR 1975 SC 1039. The learned judges rejected this argument in the following terms (AIR headnote):

    "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."

    10. Then again the learned judges observed as follows:

    "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 a statute, the language of which is otherwise plain and unambiguous, the court 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 would be entrenching upon the preserves of Legislature, the primary function of a court of law being jus dicere and not jus dare."

    11. Mr. Rajgarhia also contended that the appeal under Section 269H of the Act is a civil appeal and, as such, the provisions of 0. 41, r. 1 of the CPC are applicable. According to Mr. Rajgarhia, therefore, the memorandum of appeal had to be accompanied by a copy of the judgment on which it was founded. Further, Mr. Rajgarhia urged that since the filing of a certified copy of the order was imperative the time taken in obtaining the same must be excluded. I am not inclined to accept this contention also. There is no provision in the Act which even impliedly suggests that the provision of Order 41 of the CPC will apply to appeals under Section 269H of the Act. In my view, unless a provision making the CPC applicable either expressly or impliedly is made, it cannot be said that the appeal under Section 269H of the Act is civil in character and, as such, Order 41 of the CPC applies to it. In this connection, I may refer to the case of Bokaro and Ramgur Ltd. v. Kathara Coal Co. Ltd., AIR 1969 Patna 235. That was a case, where an appeal was filed under Section 20 of the Coal Bearing Areas (Acquisition and Development) Act, 1957. The respondent in that case filed a cross-objection. The cross-objection was not maintainable because there was no provision in the Coal Bearing Areas (Acquisition and Development) Act, 1957, analogous to those of Order 41, Rule 22 of the CPC. It was said in that case that the determination of compensation has been expressly made appealable under Section 20 of the Act aforesaid but short of an appeal under and in accordance with Section 20, it cannot be canvassed in the civil court. Section 269G(7) provides that orders passed by the Appellate Tribunal on appeal shall be final save as provided in Section 269H of the Act. That means that the order passed by the Tribunal on appeal is final but short of an appeal, under and in accordance with Section 269H of the Act, it cannot be canvassed in the civil court. I have already held earlier that the Act is complete in itself and, as such, there is no question of application of Order 41 of the CPC.

    12. Mr. Rajgarhia, learned counsel, next urged that a certified copy of the impugned order has to be filed along with the memorandum of appeal and, as such, the time spent in obtaining the certified copy has to be excluded. To support his argument, learned counsel referred to a number of decisions, but, in my view, this argument is not relevant. Even presuming that a certified copy of the impugned order has to be filed along with the memorandum of appeal yet the time spent in obtaining the same cannot be excluded as Section 12(2) of the Limitation Act does not apply to appeals under this section and there is no provision in the Act prescribing exclusion of the time taken in obtaining the certified copy of the impugned order for filing an appeal under Section 269H of the Act even if it be held that the filing of a certified copy along with the memorandum of appeal is necessary.

    13. I may also refer to an argument advanced by Mr. Shreenath Singh suggesting that the time spent in obtaining a copy of the order appealed from can be excluded if the order is passed by a court and not by a Tribunal. According to learned counsel, since the Tribunal which passed the impugned order, was not a court, the time taken in obtaining the certified copy of the order cannot be excluded for the purpose of limitation. I am not prepared to accept this contention of Mr. Shreenath Singh. Section 12 is quite wide in its ambit and sweep. Sub-section (2) of Section 12 provides as to how the period of limitation for an appeal, etc., should be computed. It does not say that the appeal should be against an order passed by a court only. In my opinion, therefore, Sub-section (2) of Section 12 of the Limitation Act will apply equally to appeals preferred against the orders and judgments passed by courts as well as by special tribunals and authorities constituted under different Acts.

    14. For all these reasons, I hold that the appeal is barred by limitation.

    15. An application has been filed under Section 5 of the Limitation Act praying to condone the delay in filing the appeal. The grounds for condoning the delay as mentioned in the application, inter alia, are that in the opinion of Sri S.K. Saran, junior standing counsel of the department, a certified copy of the impugned order had to be filed. In his opinion, therefore, a certified copy was to be obtained and the file was sent to the office of the senior standing counsel after 30th October, 1980, along with the certified copy. It is further said that the junior standing counsel examined the case and, according to his calculation, the last day for filing the appeal was November 7, 1980. The memorandum of appeal was accordingly drafted and the appeal was presented before the stamp reporter on November 4, 1980, at 2.30 p.m. but the advocate's clerk, Sri Surendra Pd. Sinha, felt unwell and left the High Court at 3.30 p.m, on November 4, 1980. It is further said that he got himself examined on 5th November, 1980, by Dr. S.K. Didwania, who prescribed him some medicines also. Further, according to this application Sri Surendra Pd. Sinha came to the High Court on November 6, 1980, and took the memorandum of appeal from the stamp reporter and filed the same in court. On these facts, a prayer has been made that the delay should be condoned.

    16. A rejoinder to the application under Section 5 of the Limitation Act has been filed by the respondent, which reads as follows :

    "That the statement made in paragraphs 9 and 10 of the limitation petition are not correct and are denied. The appellant is put to strict proof of the alleged illness of Sri Surendra Prasad Sinha. However, the statement that Sri Sinha did not attend the court on 5-11-80, or that he took the memo of appeal from the stamp reporter on 6-11-1980 are incorrect as is shown by the fact that the memo of appeal was taken back from the stamp reporter on 5-11-80. It may be added that the stamp reporter in his report clearly stated that the appeal was in time up to 5-11-1980, still without any cause or reason whatsoever the appeal was not filed on 5-11-80."

    17. Mr. Shreenath Singh contended that on an application for information, the High Court office has stated that the copy was actually taken by the advocate's clerk on November 5, 1980, and not on November 6, 1980. He produced before us the information in original given by the office. Mr. Singh also said that a register in this regard is maintained in the office of the High Court and an attempt was made to make an interpolation therein. In view of this serious allegation, we asked Mr. Rajgarhia to consider the matter and tell us whether he relied upon the statement made in the application regarding illness, etc., of his clerk. After considering the matter coolly, Mr. Rajgarhia stated that he did not rely upon the statement made in paras. 9 and 10 of the petition. Learned counsel also accepted that the memorandum of appeal had been received by the advocate's clerk, Sri Surendra Prasad Sinha, from the stamp reporter of the High Court on November 5, 1980, and not on November 6, 1980, and that this fact was wrongly stated in the limitation petition. The application under Section 5 of the Limitation Act was heard by us on March 3, 1981, and we recorded an order on that day mentioning all these facts. As the order sheet shows, the argument on the limitation matter was over on 3rd March, 1981, and orders were reserved. Mr. S.K. Saran, learned junior standing counsel for the appellant, however, again on March 5, 1981, produced before us the relevant file relating to the present appeal maintained by the J.T. Dept. and has asked us to take a note of the fact that on 22nd October, 1980, he had made a note in the said file that the appeal has to be accompanied by a certified copy of the order of the Tribunal which should be obtained and sent to him. The note of the learned junior counsel is at page 13/n of the file. We in the presence of counsel for the respondent perused the file which fully corroborates the statement made by Mr. Saran. After having considered the matter from all possible points of view, I am of the view that Mr. Saran genuinely thought that a certified copy of the impugned order had to be filed along with the memorandum of appeal and that the last date for filing the appeal, according to his calculation, was November 7, 1980. The appeal was, accordingly, filed on November 6, 1980. Notwithstanding the false plea regarding the illness, etc., of the clerk, I would have condoned one day's delay in filing the appeal on the ground that it was occasioned on account of lapses in the office of Mr. Rajgarhia but as I have held earlier, Chap. XX-A of the Act is a complete code in itself and as such Section 5 of the Limitation Act does not apply to appeals filed under Section 269H of the Act. For these reasons, I have no alternative, but to dismiss this application under Section 5 of the Limitation Act.

    18. Since the appeal has been filed beyond the period of limitation and the application under Section 5 of the Limitation Act has been dismissed as not maintainable, the memorandum of appeal is dismissed as barred by limitation.

    Lalit, J.

    19. I agree.

    Use AI to get other relevant cases.
    Try AI Pro free for 7 days Upgrade to AI Pro

    Comments

    Inspecting Assistant Commissioner Of Income Tax Acquisition v. Kedar Nath Jhunjhunwalla
    (Apr 18, 1981)