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CIT vs. Mohd. Farooq (Allahabad High Court – Full Bench)

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DATE: (Date of pronouncement)
DATE: September 30, 2009 (Date of publication)
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Click here to download the judgement (mohd_farooq_condonation_delay_260A.pdf)

U/s 260A, High Court has no power to condone delay

S. 260A permits the filing of an appeal to the High Court within 120 days. In CIT vs. Velingkar Brothers 289 ITR 382 (Bom) (FB), The Full Bench held that the Court had power to condone delay u/s 260A. However, in Hongo India 236 E.L.T. 417 and Chaudharana Steels 238 E.L.T. 705, the Supreme Court held in the context of sections 35H & 35G of the Excise Act, that in the absence of specific powers, the High Court has no power to condone delay. On the question whether the said judgement of the Supreme Court would apply to s. 260A as well, HELD:

(1) The Income-tax Act is a complete Code in itself. While the Commissioner, Commissioner (Appeals) and Tribunal have been given power to condone delay, no such power has been conferred upon the High Court u/s 260A. In the absence of a provision in s. 260A conferring jurisdiction to condone delay in filing the appeal, the Limitation Act would not apply and the delay cannot be condoned;

(2) The argument that s. 260A (7) provides for the applicability of the Code of Civil Procedure and that as under Order XLI Rule 3-A of the CPC delay can be condoned, the same should apply to s. 260A is not correct because Order XLI Rule 3-A of the CPC is not an independent provision conferring jurisdiction on the Appellate Court to condone the delay, but provides for the procedure to be followed for filing and considering the application for condonation of delay;

(3) The argument that the principles of natural justice demand that in case the appellant shows sufficient cause, the appeal deserves to be heard, though presented beyond the period of limitation is also not acceptable because the remedy of appeal is a statutory right and it has to be presented in accordance with the procedure, the manner and within the time prescribed by the Statute. The principles of natural justice are not remotely attracted so far as the question of limitation is concerned;

(4) The appeals were accordingly dismissed as barred by limitation.

See Also: CIT vs. Grasim Industries (27 DTR 130 Bombay High Court) and ACIT vs. Mahavir Prasad (26 DTR 105 Chhattisgarh High Court). Note: The Finance Act, 2009 has amended ss. 35G & 35H of the Excise Act to supersede the said law. However, no amendment has been made to s. 260A so far.