- Bookmark
- Share
- CaseIQ
Roland Educational And Charitable Trust v. Chief Commissioner, Income-Tax
Court Opinion Summary — B.N. Mahapatra, J. (Orissa High Court)
Factual and Procedural Background
The petitioner is a registered trust running an educational institution engaged in technical education (approved by AICTE). The trust was registered under section 12A of the Income-tax Act on January 15, 2003 (Registration No. 44/1998–99). The petitioner filed an application for exemption under section 10(23C)(vi) for the financial year 2006–07 in Form 56D with requisite documents on May 31, 2007, together with a prayer for condonation of delay. The Chief Commissioner of Income-tax, Orissa (O.P No. 1), by order dated May 30, 2008 (annexure 2), refused to entertain the application because it was filed after the time prescribed under section 10(23C)(vi) and he held that he had no power to condone the delay. The petitioner challenged that order by way of the present writ petition.
Legal Issues Presented
- Whether the Chief Commissioner of Income-tax was justified in not entertaining the petitioner's application under section 10(23C)(vi) for grant of exemption on the ground that it was not filed within the period of limitation prescribed under the Income-tax Act and that no power is vested in him to condone the delay.
Arguments of the Parties
Petitioner's Arguments (as advanced by Mr. Jagabandhu Sahoo)
- The Chief Commissioner erred in holding that he had no power to condone delay under section 10(23C)(vi); he should have admitted and considered the petitioner's application on merits.
- There is no statutory prohibition against entertaining an application for condonation of delay; a statutory authority vested with adjudicatory power can exercise incidental power to condone delay and consider matters on merits.
- The Chief Commissioner's refusal to condone the delay is contrary to principles of natural justice and fair play.
- Reliance was placed on several authorities (including ITO v. M.K. Mohammed Kunhi, Kailash v. Nanhku, R.N. Jadi & Brothers v. Subhashchandra and Indian Institute Of Engineering Technology v. Commissioner Of Income-Tax) to support the proposition that incidental or quasi-judicial powers may include condonation in appropriate circumstances.
Respondent / Department's Arguments (as advanced by Mr. A.K. Mohapatra)
- The statute prescribes a specific time limit for making applications for grant of exemption under section 10(23C)(vi) and the petitioner admittedly failed to file within that period; the Chief Commissioner was therefore justified in refusing to admit the application.
- No power is vested in the Chief Commissioner to condone delay in presenting the application under section 10(23C)(vi); only the Central Board of Direct Taxes (CBDT) is empowered under section 119(2)(b) to direct an income-tax authority to admit an application after the expiry of the period specified in the Act.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| ITO v. M.K. Mohammed Kunhi, [1969] 71 ITR 815 (SC) | Incidental and ancillary powers of a quasi-judicial authority; condonation of delay may be an ancillary power but depends on the statute. | The court held that this decision does not help the petitioner because once limitation expires the authority may lose jurisdiction and ancillary powers (like condonation) would not arise. |
| Kailash v. Nanhku, (2005) 4 SCC 480 | Authority on matters concerning limitation and procedure (noted as rendered with reference to Order 8, rule 1 CPC in this opinion). | The court held this authority (and R.N. Jadi & Brothers) has no application to the facts of the present case. |
| R.N. Jadi & Brothers v. Subhashchandra, (2007) 6 SCC 420 | Decision rendered with reference to Order 8, rule 1 CPC (procedural principles under CPC). | Court held it has no application to the facts of this case. |
| Kandula Prabhakar Rao v. Tumulu Lakshmanamurthy, [1987] 64 CLT 713 | The opinion cites this as an authority discussing condonation/incidental powers (specific principle not detailed in the opinion). | The court found this decision of no help to the petitioner in the present context. |
| CST v. Member of Sales Tax Tribunal, ILR 1971 Cutt 1325 | Case cited (principle not specifically stated in the opinion). | The court held it was of no help to the petitioner. |
| Harendra Prasad Sahu v. Orissa Sales Tax Tribunal, [1996] 103 STC 333 (Orissa) | Case cited (principle not specifically stated in the opinion). | The court held it was not helpful to the petitioner. |
| State of Nagaland v. Lipok AO, [2005] 100 CLT 111 (SC) | Case cited (principle not specifically stated in the opinion). | The court held it was of no help to the petitioner. |
| Indian Institute Of Engineering Technology v. Commissioner Of Income-Tax, W.P.(C) No. 4514 of 2008 (Order dated May 15, 2008) | Held that a belated application should be considered on merits and that quasi-judicial authorities have incidental power to condone delay where no clear statutory bar exists (as applied in that order). | The court distinguished and declined to follow that earlier order here, observing that the ratio of Supreme Court decisions applied in the present judgment were not brought to notice in that earlier order; therefore it has no application to the present case. |
| Singh Enterprises v. CCE, (2008) 3 SCC 70 | Held that a proviso excluding extension beyond a specified period demonstrates legislative intent to override section 5 of the Limitation Act; appellate authority cannot condone delay beyond the statutory cut-off. | The court relied on this authority to support the proposition that statutory limitation can exclude the Limitation Act and preclude condonation beyond what the statute allows. |
| Commissioner of Customs, Central Excise v. Punjab Fibres Ltd., (2008) 3 SCC 73 | Authority applying the same principle as Singh Enterprises regarding exclusion of Limitation Act and limitations on condonation (as cited in the opinion). | The court treated it as supporting the proposition that statutory provisions can exclude the Limitation Act and prevent condonation. |
| Goodearth Steels (P) Ltd. v. Commissioner Of Central Excise, Kanpur, (2008) 3 SCC 77 | Authority on limitation/exclusion of Limitation Act cited alongside other SCC decisions. | Used as supporting authority for the principle that statutory time-limits may preclude condonation under the Limitation Act. |
| Gopal Sardar v. Karuna Sardar, (2004) 4 SCC 252 | Authority cited in the group of cases addressing limitation and condonation. | Used in support of the same limitation-related principle. |
| United Commercial Bank Ltd. v. Workmen, AIR 1951 SC 230 | General principle that a court cannot derive jurisdiction apart from statute (as cited). | Applied to support the proposition that the Chief Commissioner cannot travel beyond statutory provisions. |
| Smt. Nai Bahu v. Lala Ramarayan, (1978) 1 SCC 58 : AIR 1978 SC 22 | Authority cited for the proposition that courts/authorities cannot derive jurisdiction beyond statute. | Relied upon to reinforce that statutory limits control authority's powers. |
| Natraj Studios P. Ltd. v. Navrang Studio, (1981) 1 SCC 523 : AIR 1981 SC 537 | Authority cited in the same context (court cannot derive jurisdiction apart from statute). | Applied to support the court's conclusion about statutory limits on authority. |
| UOI v. Deoki Nandan Aggarwal, 1992 Supp (1) SCC 323 : AIR 1992 SC 96 | Authority cited for the general jurisdictional principle (court cannot derive jurisdiction apart from statute). | Used to buttress the court's statutory-limit argument. |
| Karnal Improvement Trust v. Prakash Wanti, (1995) 5 SCC 159 | Authority cited on the same theme of statutory limits on powers. | Relied upon in support of the court’s position. |
| Collector of Central Excise v. Flock (India) (Pvt.) Ltd., (2000) 6 SCC 650 : AIR 2000 SC 2484 | Authority cited regarding limits of authority's jurisdiction under statute. | Referred to support the proposition that statutory limits cannot be overridden. |
| State of U.P. v. Harish Chandra, AIR 1996 AC 2173 | Authority cited for the proposition that courts cannot issue directions contrary to law. | Applied to reject the petitioner's request for a direction that would effectively make the Chief Commissioner act contrary to statute. |
| UOI v. Kirloskar Pneumatic Co. Ltd., (1996) 4 SCC 453 : AIR 1996 SC 3285 | Authority cited for the same proposition about courts not directing authorities to contravene statutory provisions. | Relied on to support refusal to direct condonation contrary to the statute. |
| Vice-Chancellor, University of Allahabad v. Dr. Anand Prakash Mishra, (1997) 10 SCC 264 | Authority cited in the same context. | Used to reinforce the court's stance that it cannot direct statutory contraventions. |
| State of Punjab v. Renuka Singla, (1994) 1 SCC 175 | Authority that remarks on the impossibility of courts directing authorities to violate statutory rules/regulations. | Quoted by the court to show it cannot be liberal in issuing directions that effectively violate statutory rules. |
| KSRTC v. Ashrafulla Khan, (2002) 2 SCC 560 : AIR 2002 SC 629 | Authority that the High Court under Article 226 must enforce the rule of law and not pass orders contrary to law. | Applied to emphasize that the High Court cannot issue directions contrary to the statute. |
| District Mining Officer v. Tata Iron and Steel Co., (2001) 7 SCC 358 | Authority cited for the settled proposition that the function of the court is to expound law and not to legislate. | Relied upon in support of the court's refusal to direct a statutory contravention. |
Court's Reasoning and Analysis
The court's analysis proceeded in the following steps, as set out in the opinion:
- Statutory text and timing requirement: The court examined section 10(23C)(vi) and rule 2CA(1) of the Income-tax Rules, 1962, and noted the proviso inserted by the Finance Bill, 2006 (effective from June 1, 2006) which requires that applications made on or after June 1, 2006 for grant/continuance of exemption under sub-clause (vi) must be made "at any time during the financial year immediately preceding the assessment year from which the exemption is sought." Thus, for FY 2006–07, the application had to be made by March 31, 2007; the petitioner's application was filed on May 31, 2007 (after that date).
- Absence of statutory condonation provision: The court observed that the Income-tax Act expressly contains provisions for condonation of delay in certain contexts (sections 249(3), 253(5), 264(3) for first/second appeals and revision) but does not contain any power for the Chief Commissioner to admit an application under section 10(23C)(vi) after the statutory period. The legislature, when it intended, provided express condonation provisions in the Act; it did not do so for section 10(23C)(vi).
- Legislative intent and Notes on Clauses: The Notes on Clauses to the Finance Bill, 2006 were cited (as quoted in the impugned order) to show that the amendment was deliberately introduced to create a time-limit for applications for grant/continuance of exemption and that this amendment applied to applications made on or after June 1, 2006. The court treated these materials as reinforcing that the Legislature intended the statutory cut-off to be effective and binding.
- Exclusion of Limitation Act and relevant authorities: The court relied on decisions of the Supreme Court (notably Singh Enterprises v. CCE and related authorities) holding that a statutory proviso may exclude the operation of section 5 of the Limitation Act, and that where the statute prescribes a specific non-extendable period, authorities (and courts) have no power to condone delay beyond that period. The court concluded that the provisions of section 10(23C)(vi) override the Limitation Act and that reliance on any other statute (including the Limitation Act) was inappropriate to justify condonation.
- Limits of jurisdiction: The court reiterated the settled proposition that a statutory authority (the Chief Commissioner) is a creature of statute and cannot exercise jurisdiction beyond what statute confers. The court cited multiple Supreme Court authorities for the principle that courts cannot derive jurisdiction apart from statute or direct authorities to act contrary to statutory rules.
- Distinguishing earlier order: The petitioner relied on this court's earlier order in Indian Institute Of Engineering Technology v. Commissioner Of Income-Tax (May 15, 2008). The court noted that the ratio of Supreme Court decisions applied in the present judgment had not been brought to notice in that earlier order and therefore held that the earlier order did not apply to the present facts.
- Conclusion of legal effect: Because the statute prescribes the period for filing and contains no provision for condonation by the Chief Commissioner for section 10(23C)(vi) applications, the Chief Commissioner did not acquire jurisdiction to entertain the petitioner's belated application and was correct to refuse to admit it.
Holding and Implications
WRIT PETITION DISMISSED.
Implications and direct effect:
- The court upheld the Chief Commissioner of Income-tax's order refusing to admit the petitioner's belated application under section 10(23C)(vi); the writ petition was dismissed without any order as to costs.
- The decision affirms that where the Income-tax Act prescribes a statutory cut-off for filing an application (as under the proviso to section 10(23C)(vi) for applications made on or after June 1, 2006), and no power of condonation is provided to the relevant authority, the authority lacks jurisdiction to admit and condone belated applications. The court treated the statutory provision as overriding the Limitation Act.
- The court expressly disclaimed the applicability of an earlier order of the same Court (Indian Institute Of Engineering Technology) to these facts and emphasized that the High Court cannot direct an authority to act in contravention of statutory provisions; no further or broader precedent was declared beyond the direct holding that the Chief Commissioner had no power to condone the delay in this statutory context.
This summary is prepared exclusively from the contents of the provided opinion and does not add facts or inferences beyond those expressly stated therein.
B.N Mahapatra, J.:— In the present writ petition, the petitioner challenges the order dated May 31, 2008 (annexure 2) passed under section 10(23C)(vi) of the Income-tax Act, 1961 (hereinafter called as “IT Act”) by which the Chief Commissioner, Income-tax, Orissa, Bhubaneswar (hereinafter called as “CCIT”) did not entertain the application of the assessee-petitioner made under section 10(23C)(vi) for the financial year 2006–07 for grant of exemption on the ground that the said application was not filed within the time stipulated under the said section.
2. Shorn of unnecessary details, the facts of the case as stated in the writ petition is as follows:
The petitioner, in the present case, is a registered trust which runs an educational institution. The trust is constituted, inter alia, with the object to organize and promote education. It is engaged in imparting technical education and training. The institution has been approved by the All India Council for Technical Education for conducting the degree course in Engineering and Technology. The petitioner-trust has been granted registration under section 12A of the Income-tax Act on January 15, 2003, bearing Registration No. 44/1998–99. It filed an application for exemption under section 10(23C)(vi) for the financial year 2006–07 in Form 56D along with the requisite documents on May 31, 2007. This application was accompanied by another application for condonation of delay in presenting the application under section 10(23C)(vi). The Chief Commissioner of Income-tax-O.P No. 1 by order dated May 30, 2008, refused to entertain and admit the application made under section 10(23C)(vi) on the ground that it was filed beyond the time prescribed under the statute and the statute does not vest any power with him to condone the delay. Hence, the present writ petition.
3. Mr. Jagabandhu Sahoo, learned counsel appearing on behalf of the petitioner has submitted that the Chief Commissioner of Income-tax has erroneously held that no power is available to him to condone the delay in filing the application under section 10(23C)(vi) of the Income-tax Act. The Chief Commissioner of Income-tax should have admitted the application of the assessee made under section 10(23C)(vi) for the financial year 2006–07. He further submitted that since there is no prohibition under the statute to entertain an application for condonation of delay, the statutory authority can always exercise the power to condone the delay and to consider the application on the merits. According to him, if an authority conferred with certain power to adjudicate the dispute, such authority cannot prohibit himself to consider the delay, if any, for the purpose of considering the dispute on the merits. He farther submitted that in the absence of any embargo the action of the Chief Commissioner of Income-tax in not condoning the delay is contrary to the principles of natural justice and fair play. In support of his contention learned counsel relied on the following decisions:
(i) ITO v. M.K Mohammed Kunhi, [1969] 71 ITR 815 (SC) : AIR 1969 SC 430;
(ii) Kailash v. Nanhku, (2005) 4 SCC 480 : AIR 2005 SC 2441;
(iii) R.N Jadi and Brothers v. Subhashchandra, (2007) 6 SCC 420 : AIR 2007 SC 2571;
(iv) Kandula Prabhakar Rao v. Tumulu Lakshmanamurthy, [1987] 64 CLT 713;
(v) CST v. Member of Sales Tax Tribunal, ILR 1971 Cutt 1325;
(vi) Harendra Prasad Sahu v. Orissa Sales Tax Tribunal, [1996] 103 STC 333 (Orissa);
(vii) State of Nagaland v. Lipok AO, [2005] 100 CLT 111 (SC); and
(viii) Indian Institute Of Engineering Technology v. Commissioner Of Income-Tax., [2009] 309 ITR 13 by judgment dated May 15, 2008 passed in W.P (C) No. 4514 of 2008
4. Concluding his argument, he submitted that the petitioner which is a technical educational institution exists solely for the purpose of imparting technical education without motive of profit or gain and, therefore, the order passed by O.P No. 1 will cause serious prejudice to the interests of the petitioner. Per contra, Mr. A.K Mohapatra, learned counsel appearing on behalf of opposite parties submitted that since the statute provides the period of limitation for making application for grant of exemption under section 10(23C)(vi) and admittedly the petitioner has not filed the application within the said stipulated time, the Chief Commissioner of Income-tax is justified in not admitting the petitioner's application for grant of exemption. He further submitted that no power is vested with the Chief Commissioner of Income-tax to condone the delay in presenting the application under section 10(23C)(vi) for exemption. It is the Central Board of Direct Taxes (“the CBDT”) which is empowered under section 119(2)(b) to direct an income-tax authority to admit an application or claim for any exemption, deduction, refund or any other relief under the Income-tax Act after expiry of the period specified therein the Income-tax Act.
5. In view of the rival contentions of the respective parties, the question that falls for consideration by this court is:
(i) Whether the Chief Commissioner of Income-tax is justified in not entertaining the petitioner's application made under section 10(23C)(vi) for grant of exemption on the ground that the same was not filed within the period of limitation prescribed under the Income-tax Act and no power is vested with him to condone the delay?
6. At this juncture, it is relevant to take note of the relevant provisions of section 10 of the Income-tax Act and rule 2CA(1) of the Income-tax Rules, 1962, which read as follows:
“10. Incomes not included in total income.—In computing the total income of a previous year of any person, any income falling within any of the following clauses shall not be included—…….
(23C) any income received by any person on behalf of—………
(vi) any university or other educational institution existing solely for educational purposes and not for purposes of profit, other than those mentioned in sub-clause (iiiab) or sub-clause (iiiad) and which may be approved by the prescribed authority……
Provided that the fund or trust or institution or any university or other educational institution or any hospital or other medical institution referred to in sub-clause (iv) or sub-clause (v) or sub-clause (vi) or sub-clause (via) shall make an application in the prescribed form and manner to the prescribed authority for the purpose of grant of the exemption, or continuance thereof, under sub-clause (iv) or sub-clause (v) or sub clause (vi) or sub-clause (via)….
Provided also that in case the fund or trust or institution or any university or other educational institution or any hospital or other medical institution referred to in the first proviso makes an application on or after the 1st day of June, 2006, for the purposes of grant of exemption or continuance thereof, such application shall be made at any time during the financial year immediately preceding the assessment year from which the exemption is sought.”
“2CA.(1) The prescribed authority under sub-clauses (vi) and (via) of clause (23C) of section 10 shall be the Chief Commissioner or Director General, to whom the application shall be made as provided in sub-rule (2).”
7. The above provisions make it amply clear that in order to avail of exemption or continuance thereof, if any university or other educational institution existing solely for educational purpose and not for the purpose of profit other than those mentioned in sub-clause (iiiab) or sub-clause (iiiad), which may be approved by the prescribed authority, makes an application on or after June 1, 2006, to the Chief Commissioner of Income-tax such application shall be made at any time during the financial year immediately preceding the assessment year from which the exemption is sought for. Thus, as required by the statute, application for grant of exemption for the financial year 2006–07 should be made to the Chief Commissioner of Income-tax before the end of the said financial year, i.e, by March 31, 2007. In the present case, the application was made on May 31, 2007, which is beyond the time provided in the statute. The Income-tax Act nowhere provides any provisions for condonation of delay in presenting application under section 10(23C)(vi) for grant of exemption. Thus, it is to be examined whether in the absence of such a provision any application made under section 10(23C)(vi) beyond the statutory period of limitation can be entertained by the appropriate authority by condoning the delay in presenting such application.
8. The Income-tax Act is a self-contained Act. It contain provisions for filing of first appeal under section 246A and second appeal under section 253 and appeal to High Court under section 260A against the order of assessment and first appeal order and second appeal order respectively. There is also provision for filing revision by an assessee before the Commissioner of Income-tax under section 264 against any order passed by an income-tax authority subordinate to the Commissioner. The period of limitation has been prescribed under the Income-tax Act for filing of first and second appeal, appeal to the High Court and revision. In the Income-tax Act, specific provisions have also been made to entertain first appeal, second appeal and revision if the same is not presented within the statutory period provided under the statute. Sections 249(3), 253(5) and 264(3) provide that the first appellate authority, the second appellate authority as well as the revisional authority may admit appeal or revision, as the case may be, after the expiration of the period of limitation provided under the statute if the authorities are satisfied that the appellant/petitioner has sufficient cause for not presenting the appeal/revision within the period of limitation. With regard to appeal to the High Court, section 260A(7) provides that save as otherwise provided in the Income-tax Act the provisions of the Code of Civil Procedure, 1908, relating to the appeal to the High Court shall as far as may be, apply in case of appeals under that section. No such power has been vested with the Chief Commissioner of Income-tax to admit application filed under section 10(23C)(vi) beyond the statutory period by condoning the delay in presenting the application. In this context, it is relevant to reproduce the Notes on Clauses to the Finance Bill, 2006, as quoted in paragraph 5 of the impugned order (see [2006] 281 ITR (St.) 29, 191):
“Providing a time limit for application for grant of exemption or continuance of exemption for certain charitable and religious trusts and institutions and certain educational and medical institutions.
Under the existing provisions contained in sub-clauses (iv), (v), (vi) and (via) of clause (23C) of section 10, there is no time-limit for any university or other educational institution or any hospital or other institutions, or any fund or trust or institution specified therein to make an application for issue or notification/grant of approval or continuance thereof.
It is proposed to insert a new proviso in clause (23C), so as to provide a time limit for the purposes of making an application under the said sub-clauses. Such application for grant of exemption or continuance thereof under any of these sub-clauses shall have to be filed at any time during the financial year immediately preceding the assessment year from which such exemption is sought. Such application cannot be made for any earlier period. The proposed amendment shall apply only in respect of applications which are made on or after June 1, 2006.
This amendment will take effect from 1st June, 2006.”
9. Thus, the Finance Bill, 2006, has been brought, inter alia, to provide period of limitation for entertaining application under section 10(23C)(vi) for exemption made on or after June 1, 2006, and accordingly the new proviso 14 was inserted to section 10(23C)(vi). While providing period of limitation for presenting application for grant of exemption under section 10(23C)(vi) before the Chief Commissioner of Income-tax, the Legislature has not made any provision for condonation of delay in presentation of such application as has been provided for filing of first appeal, second appeal, appeal to the High Court and revision. The language used in proviso 14 to section 10(23C)(vi), the Notes on Clauses to the Finance Bill, 2006, and that the Income-tax Act contain provisions for condonation of delay in presenting first appeal, second appeal, appeal to the High Court and revision make it amply clear that the Legislature never intended to condone delay in presenting application for grant of exemption under section 10(23C)(vi) of the Income-tax Act. The legislative intents assume importance which require that application under section 10(23C)(vi) for exemption shall be made before the end of the financial year from which the exemption is sought. In such a situation, the Chief Commissioner of Income-tax cannot condone the delay in presenting the application made before him under section 10(23C)(vi) for grant of exemption beyond the period of limitation.
10. In this context, it is appropriate to refer to the judgment of the hon'ble Supreme Court in Singh Enterprises v. CCE, [2008] 10 RC 174 : (2008) 3 SCC 70. While considering the provisions of the Central Excise Act, 1944, the hon'ble apex court held (page 72 of [2008] 3 SCC):
“The proviso to sub-section (1) of section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the Legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of section 5 of the Limitation Act. The Commissioner and the High Court were, therefore, justified in holding that there was no power to condone the delay after the expiry of 30 days' period.”
11. A similar view has been taken by the hon'ble apex court in Commissioner of Customs, Central Excise v. Punjab Fibres Ltd., (2008) 3 SCC 73, Goodearth Steels (P) Ltd. v. Commissioner Of Central Excise, Kanpur., (2008) 3 SCC 77 and Gopal Sardar v. Karuna Sardar., (2004) 4 SCC 252.
12. Hence, the provisions of section 10(23C)(vi) override the provisions of the Limitation Act. Therefore, it will not be appropriate/permissible to rely on the provisions of any other statute including the Limitation Act for the purpose of considering the matter relating to condonation of delay.
13. The Chief Commissioner of Income-tax being a creature of the statute cannot travel beyond the statutory provisions. Law is well settled that court cannot derive jurisdiction apart from the statute (vide United Commercial Bank Ltd. v. Workmen, AIR 1951 SC 230; Smt. Nai Bahu v. Lala Ramarayan, (1978) 1 SCC 58 : AIR 1978 SC 22; Natraj Studios P. Ltd. v. Navrang Studio, (1981) 1 SCC 523 : AIR 1981 SC 537, UOI v. Deoki Nandan Aggarwal, 1992 Supp (1) SCC 323 : AIR 1992 SC 96, Karnal Improvement Trust v. Prakash Wanti, (1995) 5 SCC 159 and Collector of Central Excise v. Flock (India) (Pvt.) Ltd., (2000) 6 SCC 650 : AIR 2000 SC 2484.
14. Mr. Sahoo, learned counsel submitted that a direction may be given to the Chief Commissioner of Income-tax to consider the application of the petitioner for condonation of delay. In support of such submission he relied on the order dated May 15, 2008, passed by this court in W.P (C) No. 4514 of 2008 in Indian Institute Of Engineering Technology v. Commissioner Of Income-Tax., [2009] 309 ITR 13 wherein this court held that though the application for grant of approval for exemption had been filed by an educational institution belatedly, it should have been considered on the merits. This court further held that in deciding such questions the Commissioner decides the rights of the parties and, therefore, has to act in a quasi-judicial capacity. He has to decide rights of the parties after a hearing. Any authority exercising such quasi-judicial function should also have the incidental power of condoning delay if there is justifiable ground for such condonation. There is no clear statutory bar preventing such condonation.
15. However, law as has been laid down by the hon'ble Supreme Court, the court has no competence to issue a direction contrary to law. Nor the court can direct an authority to act in contravention of the statutory provisions, (vide State of U.P v. Harish Chandra, AIR 1996 AC 2173, UOI v. Kirloskar Pneumatic Co. Ltd., (1996) 4 SCC 453 : AIR 1996 SC 3285 and Vice-Chancellor, University of Allahabad v. Dr. Anand Prakash Mishra, (1997) 10 SCC 264).
16. In State of Punjab v. Renuka Singla, (1994) 1 SCC 175, dealing with a similar situation, the hon'ble apex court observed as under (page 178):
“We fail to appreciate as to how the High Court or this court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations…….”
17. Similarly, in KSRTC v. Ashrafulla Khan, (2002) 2 SCC 560 : AIR 2002 SC 629, the hon'ble apex court has held as under (page 637):
“The High Court under article 226 of the Constitution is required to enforce rule of law and not pass order or direction which is contrary to what has been injuncted by law.”
18. While passing the order dated May 15, 2008, in W.P (C) No. 4514 of 2008 (Indian Institute Of Engineering Technology v. Commissioner Of Income-Tax., [2009] 309 ITR 13) the ratio of the decisions of the hon'ble Supreme Court which are applied in this judgment were not brought to the notice of this court. Hence, the order of this court dated May 15, 2008, in W.P (C) No. 4514 of 2008 has no application to the present case.
19. Therefore, the submission of the learned counsel to issue direction to the Chief Commissioner of Income-tax to consider his application for condonation of delay does not merit any consideration.
20. It is settled legal proposition that function of the court is only to expound the law and not to legislate. (See District Mining Officer v. Tata Iron and Steel Co., (2001) 7 SCC 358).
21. In M.K Mohammed Kunhi's case, [1969] 71 ITR 815 (SC) relied on by Mr. Sahoo, learned counsel for the petitioner, the hon'ble court held that in the absence of any specific power of the authority to grant stay there is implied power of doing all such acts or employing any such means as are essentially necessary to its execution. According to the said decision, while exercising any jurisdiction by any quasi-judicial authority, the question of ancillary and incidental power arises. Condonation of delay may itself be a question of jurisdiction depending upon the statute applicable. Once limitation expires, the court/authority may lose the jurisdiction to adjudicate any issue. In that event, exercise of any ancillary and incidental power does not arise. Thus, M.K Mohammed Kunhi's case, [1969] 71 ITR 815 (SC) is of no help to the assessee.
22. In the present case, the Chief Commissioner of Income-tax does not acquire any jurisdiction in respect of the application filed under section 10(23C)(vi) beyond the statutory period of limitation. In that situation, the decisions, as reported in Kandula Prabhakar Rao v. Tumulu Lakshmanamurthy, [1987] 64 CLT 713, CST v. Member of Sales Tax Tribunal, ILR 1971 Cutt. 1325, Harendra Prasad Sahu v. Orissa Sales Tax Tribunal, [1996] 103 STC 333 (Orissa) and Lipok AO's case, [2005] 100 CLT 111 (SC) are of no help to the petitioner.
23. The decisions of the hon'ble Supreme Court in Kailash's case, (2005) 4 SCC 480 : AIR 2005 SC 2441 and R.N Jadi and Brothers, (2007) 6 SCC 420 : AIR 2007 SC 2571, rendered with reference to Order 8, rule 1 of the Code of Civil Procedure, hence have no application to the facts of this case.
24. Mr. Sahoo, learned counsel vehemently opposed the plea of the Department that power of condonation is available with the Central Board of Direct Taxes under section 119(2) of the Income-tax Act. According to Mr. Sahoo, the contention is out and out untenable for the simple reason that the provisions under section 119(2) of the Income-tax Act authorizes the Central Board of Direct Taxes to issue instruction to subordinate authorities by general or special orders, if it considers necessary or expedient to do so, but not at the instance of the individual/person or assessee.
25. Be that as it may, we are here concerned whether in the absence of any statutory provision to condone the delay in presenting the application under section 10(23C)(vi), the Chief Commissioner of Income-tax can exercise any such power. For the reasons stated above, the answer is certainly in the negative.
26. In view of the above, we do not find any infirmity in the order of the Chief Commissioner of Income-tax passed under annexure 2 of the Income-tax Act. Hence, the writ petition is dismissed without any order as to costs.
Dr. B.S Chauhan, C.J:— I agree.
Alert