B. Subba Rao Vs. Inspecting Assistant Commissioner of Income-tax - Court Judgment

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direct taxation - time barred appeal - sections 253, 253 (5), 269 (g) of income tax act, 1961 - whether tribunal can admit appeal preferred beyond limitation period prescribed in section 269 g - appeal has to be preferred within prescribed period - time can be extended if appellant submit application to extend time before expiry - appeal preferred beyond prescribed time and no application made to extend it - held, appeal time barred and not to be admitted. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - sub-section (5) of section 253 expressly confers upon the appellate tribunal the power to admit an appeal, after the expire of the prescribed period, if it is satisfied that there was sufficient cause for not presenting it within the period prescribed. the only manner in which the said period can be extended is by the proposed appellant submitting an application before the expiry of the prescribed period for extending the time for filing the appeal, and the appellate tribunal is satisfied that there is sufficient cause for him for not filing the appeal within the period, it would extend the time of such period as it may think appropriate. the appeal must, therefore, be held to be clearly barred. this decision was expressly approved by the supreme court and it made the following observations 1985(22)elt327(sc) :after hearing both sides, we have unhesitatingly come to the conclusion that there is no substance in this appeal and that the view taken by the division bench in venkaiah's case air1978ap166 ,is perfectly correct and sound. it is well settled by the decisions of this court in town municipal council v. the said decision clearly holds that the limitation act applies only to civil courts and not to quasi-judicial tribunals, even though such tribunals may be vested with certain specified powers conferred on courts under the codes of civil or criminal procedure.b.p. jeevan reddy, j. 1. in this special appeal preferred under section 269h of the income-tax act, the only question for consideration is whether the income-tax appellate tribunal has the power to admit an appeal preferred beyond the period of limitation prescribed in sub-section (1) of section 269g of the act. 2. the appellant purchased a rice mill under a registered sale deed dated august 31, 1974, for a consideration of rs. 46,000 a notice under section 269d(1) of the act was served upon the appellant, thereby initiating proceedings under section 269c for acquisition of the said rice mill, on the ground that the apparent consideration recorded in the instrument of transfer was less than the fair market value by more than 15%. it was alleged that the consideration mentioned in the sale deed is not the true consideration that passed between the parties. the appellant submitted his objections; but, by his order dated december, 6, 1978, the inspecting assistant commissioner of income-tax range (competent authority), passed an order under section 269f(6) acquiring the said property. the copy of the order was served upon the appellant on december 26, 1978. 3. against the order of the inspecting assistant commissioner, the appellant submitted a memorandum of appeal, through registered post, on february, 2, 1979, which was received in the office of the tribunal on february 7, 1979. on march 22, 1979, the appellant filed an application before the tribunal to receive and entertain the said appeal by extending time under the proviso to section 269g read with section 5 of the limitation act. an affidavit was also filed by the appellant setting out the circumstances in which he could not prefer the appeal within the time prescribed and for the delay of 13 days in preferring the appeal. the tribunal, however, held by its order dated april 30, 1979, that it has no power to condone the delay and accordingly rejected the appeal. thereupon, the appellant preferred the present appeal. 4. sub-section (1) of section 269g reads as follows : 'an appeal may be preferred to the appellate tribunal against the order for the acquisition of any immovable property made by the competent authority under section 269f, - (a) by the transferor or the transferee or any other person referred to in sub-section (8) of that section, within a period of forty-five days from the date of such order or a period of thirty days from the date of service of a copy of the order on such person under the said sub-section, whichever period expires later; (b) by any other person interested in such immovable property, within forty-five days from the date of the such order : provided that the appellate tribunal may, on an application made in this behalf before the expire of the said period of forty-five days or, as the case may be, thirty days, permit, by order, the appeal to be presented within such further period as may be specified therein if the applicant satisfies the appellate tribunal that he has sufficient cause for not being able to present the appeal within the said period of forty-five days or, as the case may be, thirty days.' 5. a perusal of the proviso would immediately disclose that in the matter of an appeal under this sub-section, the act has made a departure from section 253, which provides for appeals to the appellate tribunal against the orders passed under various sections of the act. sub-section (5) of section 253 expressly confers upon the appellate tribunal the power to admit an appeal, after the expire of the prescribed period, if it is satisfied that there was sufficient cause for not presenting it within the period prescribed. this is a power akin to section 5 of the limitation act. but when it came to section 269g, it made a clear departure. according to this provision, an appeal has to be preferred either within forty-five days of the date of order of the competent authority, or within thirty days of the date of service of a copy of the order, whichever is later. the only manner in which the said period can be extended is by the proposed appellant submitting an application before the expiry of the prescribed period for extending the time for filing the appeal, and the appellate tribunal is satisfied that there is sufficient cause for him for not filing the appeal within the period, it would extend the time of such period as it may think appropriate. this is a provision totally different from the one contained in sub-section (5) of section 253 or section 5 of the limitation act. in this case, admittedly, the appeal preferred by the appellant is 13 days beyond the prescribed period and it is also admitted that no application was filed by the appellant before the expiry of the prescribed period for extending the time now was any order made thereon extending the time for filing the appeal. the appeal must, therefore, be held to be clearly barred. 6. mr. y. ratnakar, learned counsel for the appellant, however, submitted that by virtue of section 29(2) of the limitation act, the provision contained in section 5 of that act becomes applicable and the tribunal has the power to condone the delay in filing the appeal for sufficient cause. he relied upon the decision of the punjab and haryana and madhya pradesh high courts, respectively, in manoj ahuja v, iac of i.t. (acquisition range) and cit v. trilokinath : [1984]147itr613(mp) . the punjab and harayana high court has held that inasmuch as neither section 269f nor any other provision in the act excludes the application of the provisions of sections 4 - 24 of the limitation act to applications and appeals filed under the various provisions of the income-tax act, section 5 of the limitation act applies by virtue of the provisions contained in section 29(2). the madhya pradesh high court also has taken the same view. we are, however, of the opinion that the view taken by these two high courts is contrary to the various decisions of the supreme court in which it has been repeatedly held that the limitation act applies only to courts and has no application to quasi-judicial tribunals. this view has consistently been taken by the supreme court commencing from its decisions in town municipal council, athani v. presiding officer, labour court : (1969)iillj651sc ; nityanand m. joshi v. life insurance corporation of india : (1969)iillj711sc and smt. sushil a devi v. ramanandan prasad : [1976]2scr845 . we do not, however, think if necessary to refer to all the said decisions since it would be sufficient to refer to the latest decision of the supreme court in sakuru v. tanaji : 1985(22)elt327(sc) . the said decision arises from a judgment of this court wherein they have approved a bench decision of this court in k. venkaiah v. k. venkateswara rao : air1978ap166 . the matter had arisen before the bench under the andhra pradesh (telangana area) tenancy and agricultural lands act. the question was whether the appellate authority under the act has power to condone the delay in filing the appeal under section 5 of the limitation act. the division bench of this court took the view that it has no such power because the limitation act applies only to civil courts, and not to tribunals, and also because there is no provision in that act making section 5 of the limitation act applicable to proceedings under that act. it was, however, held that so far as the revision to the high court provided by the act is concerned, the high court being a civil court has power to extend the period under section 5 of the limitation act. this decision was expressly approved by the supreme court and it made the following observations : 1985(22)elt327(sc) : 'after hearing both sides, we have unhesitatingly come to the conclusion that there is no substance in this appeal and that the view taken by the division bench in venkaiah's case : air1978ap166 , is perfectly correct and sound. it is well settled by the decisions of this court in town municipal council v. presiding officer, labour court : (1969)iillj651sc nityanand m. joshi v. life insurance corporation of india : (1969)iillj711sc and sushila devi v. ramanandan prasad : [1976]2scr845 , that the provisions of the limitation act, 1963, apply only to proceedings in 'courts' and not to appeals or applications before bodies other than courts such as quasi-judicial tribunals or executive authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on courts under the codes of civil or criminal procedure. the collector before whom the appeal was preferred by the appellant herein under section 90 of the act not being a court, the limitation act, as such, had no applicability to the proceedings before him. but even in such a situation, the relevant special statute may contain an express provision conferring on the appellate authority, such as the collector, the power to extend the prescribed period of limitation on sufficient cause being shown by laying down that the provisions of section 5 of the limitation act shall be applicable to such proceedings.' 7. the supreme court then proceeded to examine whether there is any provision in the tenancy act applying section 5; it found that there is none. accordingly, it held that section 5 does not apply and the appellate authority has no power to condone the delay in filing the appeal. the said decision clearly holds that the limitation act applies only to civil courts and not to quasi-judicial tribunals, even though such tribunals may be vested with certain specified powers conferred on courts under the codes of civil or criminal procedure. section 29(2) does not have the effect of extending the application of the limitation act to tribunals. it only says that where a different period of limitation is prescribed by any special enactment or local law, the provisions of section 3 of the limitation act shall apply as if such period were the period prescribed by the schedule to the limitation act and for the purpose of determining any period of limitation prescribed by such special or local law, the provisions contained in sections 4 - 24 shall apply unless expressly excluded by such special or local law. this provision applies only to proceedings before a civil court and not before a quasi-judicial tribunal. for the above reasons, it is not possible for us to agree with the aforesaid decisions of the punjab and haryana and madhya pradesh high courts. 8. mr. ratnakar, learned counsel for the appellant, then contended that inasmuch as the property vests in the central government only after the possession of the property acquired is taken (see sub-section (4) of section 269(1), the affected party must be held to have the right to prefer an appeal so long as the property does not so vest in the central government. we are unable to appreciate this argument. the period of limitation prescribed by sub-section (1) of section 269g and the proviso contained therein are not dependent upon, nor have they any intrinsic link with the vesting of the property under sub-section (4) of section 269i. may be that by a mere passing of the order under sub-section (6) of section 269f, the property does not vest in the central government and that it vests in it only after possession is taken, but this aspect, in our opinion, has no relevance on the question at issue herein. in this connection, we may refer to the decision of the patna high court in iac (acquisition) v. kedar nath jhunjhunwalla : [1982]133itr746(patna) , wherein it has been held that the tribunal has no power to extend the period prescribed for filing an appeal under section 269g. but, we must say the reasoning behind this conclusion is altogether different from the one given by us hereinbefore. the reasoning of the patna high court is that the application of section 29(2) of the limitation act is excluded by the context, viz., that chapter xx-a of the income-tax act is a self-contained code. it is not necessary for us to deal with this point of view inasmuch as, according to us, section 29(2) cannot have the effect of applying the limitation act to tribunals, and if so, the question of its exclusion by the context would not arise. suffice it to note that the conclusion arrived at by the patna high court accords with our conclusion. 9. mr. ratnakar then contended that if the tribunal is held to have no such power, injustice may result in several cases, and that we should, with a view to avoid such a consequence, be prepared to do violence to the language in the statute, and so construe the act as to deduce such a power. he relied upon the decisions of the supreme court in k. p. varghese v. ito : [1981]131itr597(sc) ; american home products corporation v. mac laboratories private ltd. : air1986sc137 and state of tamil nadu v. kodaikanal motor union (p.) ltd. [1986] 62 stc 272, wherein it has been held that where by applying the normal rule of construction, a manifestly absurd or unjust result emerges, the court should avoid such a result, if necessary by doing some violence to the language. the idea behind the said rule is to avoid manifestly absurd consequences. we are, however, unable to see any room for applying the said theory herein. by no amount of twisting can we construe the proviso as empowering the tribunal to entertain an appeal beyond the prescribed period where no application for extension is filed within the prescribed period. we do not think that the said rule of interpretation empowers us to mutilate the proviso to sub-section (1) of section 269g and to rewrite the same in terms of sub-section (5) of section 253 or section 5 of the limitation act. we cannot forget that section 253(5) and the said proviso occur in the same enactment and that parliament must be presumed to know of sub-section (5) of section 253 when it introduced chapter xx-a into the said act in 1972. the conclusion is inescapable that parliament wanted to provide a different provision and they made a deliberate and conscious departure from sub-section (5) of section 253. 10. for the above reasons, the special appeal fails and is accordingly dismissed, but, in the circumstances, without costs.