RAJIV SHARMA, SATISH CHANDRA J. - (1.) BY this review petition, the revisionist has made a request that the order dated 11.12.2009 passed in Income Tax Appeal No.127 of 2006 may kindly be recalled where the appeal was dismissed on the ground of limitation alone. The said order, on reproduction, reads as under: "This appeal has been filed by the assessee -appellant under Section 260 -A of the Income Tax Act against the judgment and orders dated 31.8.2005 passed by the Income Tax Appellate Tribunal, Lucknow for the assessment year 1994 -95. The appeal is barred by limitation. The appellant has filed an application for condonation of delay. In view of the Full Bench of the this Court in the case of CIT vs. Farooqui and others,317 ITR 305 Allahabad (Full Bench), the delay in filing the appeal cannot be condoned. Accordingly, the application for condonation of delay is rejected. Since, the application for condonation of delay is rejected, the appeal is accordingly dismissed too."
(2.) LEARNED counsel for the revisionist Sri Waseeq -uddin Ahmad submits that the aforesaid order was challenged before the Hon'ble Apex Court in Special Leave to Appeal (Civil) No. 33289 of 2010 and the Hon'ble Apex Court vide order dated 10.10.2011 has passed the following order: "We request the High Court to expeditiously hear and dispose of the review petition. The special leave petition shall stand over for eight weeks." Learned counsel further submits that in the Income Tax Act, Section 260 -A (2A) has been inserted by the Finance Act, 2010 w.e.f. 01.10.1998 (retrospectively), which on reproduction, reads as under: "Section 260A. 1................. 2.............. 2A. The High Court may admit an appeal after the expiry of the period of one hundred and twenty days referred to in clause (a) of sub -section (2), if it is satisfied that there was sufficient cause for not filing the same within that period." Learned counsel for the revisionist submits that by virtue of the amendment, now the Hon'ble High Court has power to condone the delay beyond the statutory period, if there is sufficient reason. So, in the instant case, delay may kindly be condoned by recalling the order dated 11.12.2009, whereby the appeal was dismissed only on the ground of limitation.
(3.) ON the other hand, learned counsel for the department opposed it. After hearing both the parties, it appears that this Bench has merely followed the decision of the Full Bench of this Hon'ble Court passed in the case of CIT v. Farooqui & others, 317 ITR 305 Allahabad (Full Bench) where it was observed: "Sub -section (2) of section 29 of the Limitation Act, 1963, provides that wherein any special or local law, a period of limitation different from the period prescribed by its Schedule is provided, the provisions of section 3 of the 1963 Act shall apply as if such period was the period prescribed by the Schedule to the 1963 Act. It also provides that for the purpose of determining any period of limitation prescribed, the provisions contained in sections 4 to 24 of the 1963 Act shall apply only in so far as and to the extent they are not expressly excluded by such special or local law. The special law providing for a period of limitation and that being different from the period prescribed by the Schedule to the 1963 Act itself, would not attract the provisions of section 29(2) of the 1963 Act. The Income -tax Act, 1961 has provided for a period of limitation for filing an appeal to the High Court and the period of limitation is different from the period prescribed by the Schedule to the 1963 Act. Section 260 A of the 1961 Act prescribes a period of limitation of 120 days whereas article 116 of the Schedule to the 1963 Act provides a period of limitation of 90 days for filing appeals to the High Court. For express exclusion of Sections 4 to 24 of the 1963 Act, the special law need not provide for its exclusion in the provision providing for appeals itself and express exclusion can be inferred from the scheme of the Act. In a case where the special law does not exclude the provisions of sections 4 to 24 of the 1963 Act by an express provision, it would nonetheless 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 the special law excludes their operation. When a special law does not provide for application of section 5 of the 1963 Act, it is expressly excluded. In the absence of any provision in Section 260 A of the 1961 Act conferring jurisdiction to condone the delay in filing the appeal and in view of the scheme of the Act, 1961 the provisions of sections 4 to 24 of the Act 1963 would not be applicable in the case of an appeal preferred under Section 260 A of the 1961 Act. Therefore, the period of limitation prescribed for filing an appeal under section 260 A of the 1961 Act is not subject to the provisions contained in Section 4 to 24 of the Act as provided under section 29 (2) of the 1963 Act. In view of the languages of Order XLI, rule 3A of the Code of Civil Procedure, 1908, it does not give any additional right to claim condonation under this provision." ;