AFR Case :- REVIEW PETITION DEFECTIVE No. - 10 of 2011 (Income Tax Appeal No.127 of 2006) Petitioner :- J.B. Roy (Jay Brata Roy) S/O Late S.C. Roy( Itxa 127/2006 ) Respondent :- Deputy Commissioner of Income Tax, Central Circle-I, LKO. Petitioner Counsel :- Waseeq Uddin Ahmed Hon'ble Rajiv Sharma,J. Hon'ble Dr. Satish Chandra,J. By this review petition, revisionist has made request that order dated 11.12.2009 passed in Income Tax Appeal No.127 of 2006 may kindly be recalled where appeal was dismissed on ground of limitation alone. said order, on reproduction, reads as under: This appeal has been filed by assessee-appellant under Section 260-A of Income Tax Act against judgment and orders dated 31.8.2005 passed by Income Tax Appellate Tribunal, Lucknow for assessment year 1994-95. appeal is barred by limitation. appellant has filed application for condonation of delay. In view of Full Bench of this Court in case of CIT vs. Farooqui & others,317 ITR 305 Allahabad (Full Bench), delay in filing appeal cannot be condoned. Accordingly, application for condonation of delay is rejected. Since, application for condonation of delay is rejected, appeal is accordingly dismissed too. Learned counsel for revisionist Sri Waseeq-uddin Ahmad submits that aforesaid order was challenged before Hon'ble Apex Court in Special Leave to Appeal (Civil) No. 33289 of 2010 and Hon'ble Apex Court vide order dated 10.10.2011 has passed following order: We request High Court to expeditiously hear and dispose of review petition. special leave petition shall stand over for eight weeks. Learned counsel further submits that in Income Tax Act, -2- Section 260-A (2A) has been inserted by Finance Act, 2010 w.e.f. 01.10.1998 (retrospectively), which on reproduction, reads as under: Section 260A. 1. ................ 2. ............ 2A. High Court may admit appeal after expiry of 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 same within that period. Learned counsel for revisionist submits that by virtue of amendment, now Hon'ble High Court has power to condone delay beyond statutory period, if there is sufficient reason. So, in instant case, delay may kindly be condoned by recalling order dated 11.12.2009, whereby appeal was dismissed only on ground of limitation. On other hand, learned counsel for department opposed it. After hearing both parties, it appears that this Bench has merely followed decision of Full Bench of this Hon'ble Court passed in case of CIT v. Farooqui & others, 317 ITR 305 Allahabad (Full Bench) where it was observed: Sub-section (2) of section 29 of Limitation Act, 1963, provides that wherein any special or local law, period of limitation different from period prescribed by its Schedule is provided, provisions of section 3 of 1963 Act shall apply as if such period was period prescribed by Schedule to 1963 Act. It also provides that for purpose of determining any period of limitation prescribed, provisions contained in sections 4 to 24 of 1963 Act shall apply only in so far as and to extent they are not expressly excluded by such special or local law. special law providing for period of limitation and that being different from period prescribed by Schedule to 1963 Act itself, would not attract -3- provisions of section 29(2) of 1963 Act. Income-tax Act, 1961 has provided for period of limitation for filing appeal to High Court and period of limitation is different from period prescribed by Schedule to 1963 Act. Section 260 of 1961 Act prescribes period of limitation of 120 days whereas article 116 of Schedule to 1963 Act provides period of limitation of 90 days for filing appeals to High Court. For express exclusion of Sections 4 to 24 of 1963 Act, special law need not provide for its exclusion in provision providing for appeals itself and express exclusion can be inferred from scheme of Act. In case where special law does not exclude provisions of sections 4 to 24 of 1963 Act by express provision, it would nonetheless be open to court to examine whether and to what extent nature of those provisions or nature of subject-matter and scheme of special law excludes their operation. When special law does not provide for application of section 5 of 1963 Act, it is expressly excluded. In absence of any provision in Section 260 of 1961 Act conferring jurisdiction to condone delay in filing appeal and in view of scheme of Act, 1961 provisions of sections 4 to 24 of Act 1963 would not be applicable in case of appeal preferred under Section 260 of 1961 Act. Therefore, period of limitation prescribed for filing appeal under section 260 of 1961 Act is not subject to provisions contained in Section 4 to 24 of Act as provided under section 29 (2) of 1963 Act. In view of languages of Order XLI, rule 3A of Code of Civil Procedure, 1908, it does not give any additional right to claim condonation under this provision. Full Bench decision has followed ratio laid down by Hon'ble Apex Court in case of Commissioner of Customs and Central Excise vs. Hongo India Limited (2009) 315 ITR 449 SC, where it was observed that delay cannot be condoned beyond statutory period, unless there is some specific provision. Needless to mention that in case of Commissioner of Customs, Central Excise, Noida vs. Punjab Fibres Limited, Noida; -4- (2008) 3 SCC 73, it was observed that Section 35-H (1) of Central Excise Act, 1944 provides that Commissioner of Central Excise or other party may, within one hundred and eighty days may file appeal. appeal period was prescribed 180 days and there was no discretion given to court to condone delay beyond statutory period. So, Hon'ble Apex Court observed that question of condonation of delay must, therefore, be governed by then law. In instant case, amendment under Section 260A (2A) has been introduced retrospectively w.e.f. 01.10.1998 by Finance Act, 2010. But fact remains that cases already settled before said amendment cannot be re-opened, as per ratio laid down in case of Babu Ram v. C. C. Jacob and others; AIR (1999) SC 1845, where it was observed that prospective declaration of law is devise innovated by apex court to avoid reopening of settled issues and to prevent multiplicity of proceedings. It is also devise adopted to avoid uncertainty and avoidable litigation. By very object of prospective declaration of law, it is deemed that all actions taken contrary to declaration of law prior to its date of declaration are validated. This is done in larger public interest. In matters, where decisions opposed to said principle have been taken prior to such declaration of law cannot be interfered with on basis of such declaration of law. amendments is applicable to future cases to avoid uncertainty as per ratio laid down in case of M. A. Murthy v. State of Karnatka; 264 ITR 1 SC, where it was observed that prospective over-ruling is part of principles of constitutional canon of interpretation and can be resorted to by this Court while superseding -5- law declared by it earlier. It is device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. In other words, actions taken contrary to law declared prior to date of declaration are validated in larger public interest. It is not possible to anticipate decision of highest court or amendment and pass correct order in anticipation as per ratio laid down in case of CIT v. Schlumberger Sea Company; 264 ITR 331 Cal. Therefore, amendment introduced in Section 260- A(2A) has effect only on pending and future cases, as observed in case of ACE Investment Limited v. Settlement Commission; 264 ITR 571 Madras. It may be mentioned that appeal has to be presented according to procedure prescribed. remedy of appeal is statutory right and hence it has to be presented in accordance with procedure, manner and within time prescribed by statute, and principles of natural justice are not remotely attracted so far as question of limitation is concerned. In instant case, application for condonation of delay was rightly rejected as per then law which on reproduction reads as under: Section 260-A (1). .. ................. (2). ............... (a)filed within one hundred and twenty days from date on which order appealed against is received by assessee or Chief Commissioner or Commissioner. Thus, on 11.12.2009 (when instant appeal was dismissed on -6- ground of limitation), there was no discretion with court to condone delay. discretion has come to court by virtue of amendment by inserting provision of Section 260-A (2A) of Act. In view of above, appeal in question was dismissed as per then law and subsequent amendment is not applicable as matter has already attained finality. Thus, we find no merit in review petition and same is dismissed. Order Date :- 07.09.2012. VNP/- Umang Agrawal v. Commissioner Of Income-tax (Central Circle), Kanpur & Other