K. Muthuswamy Pillai vs Income Tax Appellate Tribunal, Madras and Others

Mohan, J.—These two writ petitions can be dealt with under a Common Order. I will now refer to the facts in W.P. 5156 of 1987. The petitioner is an assessee under the First Income tax Officer, Tuticorin. In a partition which took place in the petitioner''s family in the year 1953, he was allotted four acres of land at Palayamkottai Road, Tuticorin. He sold the same for a sum of Rs. 2,70,000, by a registered document dated 24-3-1980. Action was taken under S. 147B of the Income tax Act, hereinafter referred to as the Act. The assessment was re-opened after obtaining the previous approval of the Inspecting Assistant Commissioner. On this transaction, the petitioner paid a sum of Rs. 11,000 as capital gains tax. On revision, the Income tax Officer estimated the market value of the land at Rs. 8,000 per acre by 1-1-1964. The petitioner went on appeal before the Income tax Appellate Tribunal and in the appeal, the market value was increased from Rs. 8,000 to Rs. 10,000 per acre. He preferred a reference application under S. 256(1) of the Act to the Income tax Appellate Tribunal. In filing the said application, there was a delay of 113 days. The reason, according to the petitioner, for the delay was his heart ailment. The Tribunal held that the application was time barred and the reference application itself was rejected on 11-3-1987. It is, in these'' circumstances, W.P. 5156 of 1987 has been preferred to quash the said order while W.P. 5157 of 1987 is for a declaration that S. 256(1) of the Act in so far as it prescribed time limit of 120 days in the main section and 30 days in the proviso, is invalid and ultra vires the Constitution of India. Mr. A. Subramania Rao, learned counsel for the petitioner, would urge that the order of the Tribunal is liable to be set aside as the view taken by it is wrong. There is no express exclusion of the Limitation Act. Therefore, the Tribunal ought to have looked at it from the point of view of S. 5 of the Limitation Act. As a matter of fact, a Division Bench of this Court, in dealing with Rent Control Legislation, held in the case reported in Rethinasami v. Komalavalli 95 L.W. 552=1982-2-M.L.J. 406, that unless there is an express exclusion of the Limitation Act, yet S. 5 could be invoked.

In opposition to this, learned counsel for the Department would urge that this is a special law of limitation. Where, therefore, the law itself has chosen to lay down that the authority constituted under the Act had no power to condone beyond 30 days, an application having been filed after a delay of 113 days could not be condoned at all since there was no power. The law of limitation is one of procedure and not of substance. In C.S.T. v. Parson Tools & Plants 1975-4-S.C. C. 22, a case arising under the Sales tax Act, the Supreme Court observed that if a special legislation happens to lay down a particular limitation contrary to the general law of limitation, it is that which shall prevail. Therefore, there are absolutely no merits in either of these two writ petitions. In order to appreciate this controversy, let me extract S. 256(1) of the Act, which is challenged before me. It reads as under:

Statement of case to the High Court--

(1) The assessee or the Commissioner may, within sixty days of the date upon which he is served with notice of an order under S. 254, by application in the prescribed form, accompanied where the application is made by the assessee by a fee of two hundred rupees require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court;

Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period herein before specified, allow it to be presented within a further period not exceeding thirty days.

From a reading of the above, it will be clear that within sixty days of the service of notice of an order under S. 254, a reference will have to be asked for by the assessee or the Commissioner. However, where there is a delay for which sufficient cause is shown, the delay could be condoned for a period of thirty days only. It is well settled that the law of limitation is not one of substance but one of procedure. The object of prescribing limitation is to put an end to litigation, or to state it in other words, the litigation may attain finality. No person has got a vested right as to litigation. It may vary from case to case and Act to Act. What came to be laid down in Rathinasami v. Komalavalli 95 L.W. 552=1982-2-M.L.J. 406, was a general statement of law that unless there is a special exclusion of the Limitation Act, S,5 thereof will continue to have its operation, But, that is entirely different from the question which I am called upon to decide. The Act has prescribed the limitation. The Parliament has chosen to lay down sixty days as the period of limitation. The power of condonation is only thirty days. Beyond that, there is absolutely no power for the Tribunal to condone. Be it remembered in this connection that the authorities created under the Act are functionaries under the Act and they derive power under this Act and therefore, unless and until such a power is expressly found anywhere, it cannot be done at all, they being creatures of the statute. In this connection, I may usefully refer to the decision reported in C.S.T. v. Parson Tools & Ltd. 1975-4-S.C. C. 22, wherein the Supreme Court has observed as follows--

Thus the principle that emerges is that if the Legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient case being shown may be extended, in the maximum, only up to a specified time-limit and no further, then the tribunal concerned has no Jurisdiction to treat within limitation, an application filed before it beyond such maximum time-limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of S. 14(2) of the Limitation Act.

We have said enough and we may say it again that where the Legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the Court to give full effect to the same without scanning its wisdom or policy, and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the law-giver; more so if the statute is a taxing statute. We will close the discussion by recalling what Lord Hailsham has said recently in regard to importation of the Principles of natural justice into a statute which is a clear and complete Code, by itself;

It is true of course that the courts will lean heavily against any construction of a statute which would be manifestly fair. But they have no power to amend or supplement the language of a statute merely because in one view of the matter a subject feels himself entitled to a larger degree of say in the making of a decision than a statute accords him. Still less is it the functioning of the Courts to form first a judgment on the fairness of an Act of Parliament and then to amend or supplement it with new provisions so as to make it conform to that judgment.

Therefore, where the will of the Parliament has been so expressed, the petitioner cannot pay that a longer period of limitation must be afforded to him. Law helps those who are vigilant. The petitioner having been a contributory to his own latches, will have to take the blame upon himself. There are no merits in either of these writ petitions. They are dismissed. However, there will be no order as to costs.