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Larger Bench of HC rules Section 5 of the Limitation Act can not be invoked for the condonation of delay in filing revision application under Section 47 of the Delhi Sales Tax Act
October, 27th 2008

IN THE HIGH COURT OF DELHI AT NEW DELHI

 

WP(C) 18434/2006, WP(C)18435/2006, WP(C) 18436/2006,WP(C) 18475/2006 and WP(C) 18476/2006

 

20.10.2008

 

Reserved on: 25th September, 2008
Date of Decision: 20th October, 2008

 

1. WP(C) 18434/2006

 

M/S JAGANNATH DUDADHAR ..PETITIONER Through: Mr. Rajesh Jain, Advocate.
Versus
THE SALE TAX OFFICER and OTHERS ..RESPONDENTS Through: Mr. M.K. Arora, Advocate

 

2. WP(C) 18435/2006

 

M/S JAGANNATH DUDADHAR ..PETITIONER Through: Mr. Rajesh Jain, Advocate.
Versus
THE SALE TAX OFFICER and OTHERS ..RESPONDENTS Through: Mr. M.K. Arora, Advocate

 

3. WP(C) 18436/2006

 

M/S JAGANNATH DUDADHAR ..PETITIONER Through: Mr. Rajesh Jain, Advocate.
Versus
THE SALE TAX OFFICER and OTHERS ..RESPONDENTS Through: Mr. M.K. Arora, Advocate

 

4. WP(C) 18475/2006

M/S JAGANNATH DUDADHAR ..PETITIONER Through: Mr. Rajesh Jain, Advocate.
Versus
THE SALE TAX OFFICER and OTHERS ..RESPONDENTS Through: Mr. M.K. Arora, Advocate

 

5. WP(C) 18476/2006

 

M/S JAGANNATH DUDADHAR ..PETITIONER Through: Mr. Rajesh Jain, Advocate.
Versus
THE SALE TAX OFFICER and OTHERS ..RESPONDENTS Through: Mr. M.K. Arora, Advocate

 

CORAM: HON BLE THE CHIEF JUSTICE
HON BLE MS. JUSTICE REKHA SHARMA
HON BLE DR. JUSTICE S.MURALIDHAR

 

Date of Judgment; October 20, 2008

 

AIT Head Note:  Section 5 of the Limitation Act can not be invoked for the condonation of delay in filing revision application under Section 47 of the Delhi Sales Tax Act

 

J   U   D   G   M   E   N   T

 

AJIT PRAKASH SHAH, CJ

 

Revision Petitions were filed by the petitioner firm under Section 47 of the Delhi Sales Tax Act, 1975 (for short the Act ) against the assessment orders made on 16th December, 2002 pertaining to assessment years 1889-90, 1990- 91 and 1991-92. Applications were also filed praying for condonation of delay in filing the revision petitions. The Additional Commissioner-III following the decision of the Division Bench of this Court in M/s. Foremost Industries India Limited v. Lt. Governor and Others (WP(C) 221/2002) decided on 18th July, 2005, held that the Revisional Authority under the Act does not have the power to condone delay in filing revision petitions and Section 5 of the Limitation Act has no application to such revision petitions. Aggrieved by the order of the Additional Commissioner, the petitioner has preferred these writ petitions. The petitions were listed before a Division Bench of this Court which was of the opinion that there are conflicting views by this Court with regard to applicability of Section 5 of the Limitation Act and consequently the matter deserved to be decided by a larger Bench. The two Division Bench decisions of this Court, which according to the learned Judges, contain conflicting views, were M/s. Foremost Industries India Limited v. Lt. Governor and Others (supra) and Walia Electronics v. Government of NCT of Delhi and Others (2004) 111 DLT 778. The learned Judges therefore referred the following question to a larger Bench :

 

Whether Section 5 of the Limitation Act can be invoked for the condonation of delay in filing revision application under Section 47 of the Delhi Sales Tax Act

 

2. The question which came up for consideration in the case of M/s Foremost Industries India Ltd was whether the Additional Commissioner was correct in holding that the delay in filing the revision petition could not be condoned. The Bench held that the question is concluded by the Division Bench in Pranam Enterprises v. Commissioner, Sales Tax and Others (2004) 111 DLT 743 wherein it has been held that the Revisional Authority under the Delhi Sales Act does not have the power to condone the delay in filing of the revision petition and Section 5 of the Limitation Act has no application to such revision petition. It was noted that in coming to that conclusion, the Bench has relied upon Section 62 (2) of the Act which excludes the application of Section 5 of the Limitation Act to revisions filed under Section 47 of the Act.

 

3. It was argued before the Division Bench that in the case of Pranam Enterprises (supra) the Court was concerned with the interpretation of Section 45(1) of the Act. The language employed in Section 47 of the Act is different from Section 45(1) of the Act. The distinction is that Section 45(1) stipulates the maximum period in which discretion to condone delay can be exercised whereas the provisions of Section 47 merely state that application for revision shall have to be filed within two years from the date on which the order in question has been communicated to the parties or the date on which the party otherwise gains knowledge of it. In support of this argument reliance was placed on the observations of the Division Bench in Walia Electronics (supra) that The provisions of Section 45(1) and Section 47 of the Delhi Sales Tax Act are apparently different and therefore the same principles may not be applicable in the case of a revision petition under Section 47 of the Delhi Sales Tax Act. We hasten to add that the Bench, however, expressly made it clear that it is not touching upon that aspect of the matter as it is not required to do so in that case.

 

4. In the instant case, we are not concerned with the application under Section 45 of the Act. On the other hand, we are concerned with the provisions of Section 47 of the Act. We shall, therefore, confine our discussion to the question referred to us, i.e., whether Section 5 of the Limitation Act applies to a revision petition under Section 47 of the Delhi Sales Tax Act.

 

5. In order to answer the issue, we may refer to some of the provisions of the Delhi Sales Tax Act which read as follows:

 

47. Revision of other orders

 

(1) In the case of any order other than an order referred to in section 44 or to which section 46 applies, passed by a person appointed under sub-section (2) of section 9 to assist him, the Commissioner may, either on his own motion or on an application filed in accordance with such rules as may be prescribed, call for the record of any proceeding under this Act in which any such order has been passed and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such orders thereon, not being an order prejudicial to the dealer, as he thinks fit :

 

PROVIDED that the Commissioner shall not revise any order under this subsection,-

 

(a)        where an appeal against the order is pending before the appellate authority under section 43 ; or

 

(b)        where, if such appeal lies, the time within which it may be filed has not expired ; or

 

(c)        where in the case of the second appeal, the dealer has not waived his right of appeal.

 

(2) The Commissioner shall not on his own motion revise any order under this section after the expiry of two years from the date of the order sought to be revised.

 

(3) In the case of an application for revision under this section by the dealer, the application shall be made within two years from the date on which the order in question was communicated to him or the date on which he otherwise comes to know of it, whichever is earlier.

 

62. Extension of period of limitation in certain cases (1) An appellate authority may admit an appeal under section 43 after the period of limitation laid down in that section, if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within such period.

 

(2) In computing the period laid down under sections 43,45,46 and 47, the provisions of sections 4 and 12 of the Limitation Act, 1963 (36 of 1963), shall, so far as may be, apply.

 

(3) In computing the period of limitation prescribed by or under any provision of this Act, or the rules made thereunder, other than sections 43,45,46 and 47, any period during which any proceeding is stayed by an order or injunction of any court shall be excluded.

 

6. The other relevant provision which has to be answered is Section 29(2) of the Limitation Act which reads as under:

 

29. Savings - (1)

 

(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any sit, appeal or application by any special or local law, the provisions contained in section 5 to 24 (inclusive shall apply only in so far, as and to the extent to which, they are not expressly excluded by such special or local law.

 

7. On behalf of the petitioner, it is argued that in respect of a reference under Section 45(1) of the Act, the applicability of Section 5 of the Limitation Act has specifically been excluded in view of the proviso to Section 45(1) of the Act. However, such a proviso being absent in Section 47, the Revisional Authority would be clothed with the power under Section 5 of the Limitation Act. Section 47 of the Act, it is submitted, does not lay down any restriction on the Revisional Authority not to extend the time for fling a revision beyond the prescribed period, if there was sufficient cause. A revision under Section 47 has to be filed in accordance with the Delhi Sales Tax Rules, 1975 (for short the Rules ) and as per Rule 39, the provisions of Rules 36 to 38 relating to appeals have been applied mutatis mutandis to revisions under Section 47. Therefore when a revision is filed after the expiry of the prescribed period under Section 47(3), and is supported by an application, duly verified, setting forth the facts, showing sufficient cause for not preferring the revision within the said period, then the officer adjudicating the revision has to decide that application and, thus, the principles of Section 5 of the Limitation Act have been incorporated in the scheme of the Act and the Rules. To hold otherwise will have the effect of rendering the provisions of Rule 36(4) redundant which could never be the intention of the Legislature when it consciously applied the said provisions for the purpose of revisions under Rule 39 of the Rules.

 

8. On the other hand, on behalf of the Revenue it is submitted that the Sales Tax authorities are not courts even though they have certain duties assigned to them for imposition and collection of tax and in the process they have to perform duties which are quasi judicial. Section 5 can be relied upon for extension of time in respect of the proceedings in court and not before a tribunal or authority under any local or special law. In the absence of any statutory provision no power exists in the authority to condone delay. Section 62 of the Act provides that in computing the period of limitation for filing a revision under Section 47, the provisions of Sections 4 and 12 of the Limitation Act shall, so far as may be, apply. A plain reading of Section 62 can only lead to the conclusion that for a proceeding under Section 47 only the provisions of Sections 4 and 12 of the Limitation Act could apply. Therefore in such a proceeding the application of Section 5 of Limitation Act is expressly excluded. Considering the language of the Section 62 and the object behind enacting it, it is clear that Section 62 was enacted to exclude application of Section 5 of the Limitation Act. It is submitted that Rule 36(4) merely prescribes procedure for filing of petition for condonation of delay in filing an appeal and the same cannot be at any stretch of imagination be construed to confer power on the Revisional Authority to condone delay in filing revision petition beyond the prescribed period of two years.

 

9. The basic question to be answered is that whether the Revisional Authority exercising power under Section 47 of the Act is a court within the meaning of Section 29(2) of the Limitation Act and provisions of Sections 4 and 24 of the Limitation Act would apply in spite of the specific applicability of only the provisions of Section 4 and 12 of the Limitation Act to a petition under Section 47 of the Act.

 

10. In Commissioner of Sale Tax U.P., Lucknow v. Parson Tools and Plants, Kanpur reported in (1975) 35 STC 413(SC) the issue being considered was whether Section 14 of the Limitation Act would apply in proceedings under UP Sales Tax Act, 1948. The Court held that proceedings before the authorities under Sales Tax Act were before administrative tribunals and not courts as contemplated under Section 14 of the Limitation Act and hence Section 14 does not apply. The scheme of the Act would disclose that the Legislature has deliberately excluded the application of the principles underlying Sections 5 and 14 of the Limitation Act. Delay in disposal of revenue matters adversely affect the steady inflow of revenues and the financial status of the State. Section 10 was therefore designed to ensure the speedy and final determination fiscal matters within a reasonably certain time schedule. The Court quoted with approval the following observations in Smt. Ujjam Bai v. State of UP (1963) 1 SCR 778 :

 

The taxing authorities are instrumentalities of the State. They are not a part of the legislature; not are they part of the judiciary. Their functions are the assessment and collection of taxes and in the process of assessing taxes, they follow a pattern of action which is considered judicial. They are not thereby converted into courts of civil judicature. They still remain the instrumentalities of the State and are within the definition of State in Article 12.

 

While considering provisions of the UP Sales Tax Act the Court held that they are merely administrative tribunals and not courts and Section 14 of the Limitation Act, therefore, does not in terms apply to proceedings before such tribunals. The Court considering Section 10 of the UP Act noted the following scheme:

 

Three features of the scheme of the provisions of above provision are noteworthy. The first is that no limitation has been prescribed for the suo motu exercise of its jurisdiction by the revising authority. The second is that the period of one year prescribed as limitation for filing an application for revision by the aggrieved party is unusually long. The third is that the revising authority has not discretion to extend this period beyond a further period of six months, even on sufficient cause shown.

 

The Court observed that the three stark features of the scheme and language of the above provision unmistakably show that the Legislature has deliberately excluded application of the principles underlying Sections 5 and 14 of the Limitation Act except to the extent and in the truncated form embodied in Sub-section (3B) of Section 10 of the Sale Tax Act. The Court then proceeded to hold as under:

 

If the Legislature willfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by a analogy or implication, something what it thinks to be a general principle of justice and equity. To do so, would be entrenching upon the preserves of legislature, the primary function of a court of law being jus dicere and not jus dare.

 

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; ore so if the statute is a taxing statute.

 

11. In Nityananda M. Joshi v. Life Insurance Corporation of India AIR 1970 SC 209 the Court held that in view of Section 4 and 5 of the Limitation Act, it would be clear that the scheme of the Act is that it only deals with applications to courts and the Labour Court is not a court within the meaning of the Limitation Act, and, therefore, an application under Section 33C(2) cannot be held to be barred under Article 137 insofar as the claim was for a period beyond three years. In CIT v. Western India Engineering Co. Ltd. 77 ITR 165 the Division Bench of Gujarat High Court has held that the Appellate Tribunal under Section 66(1) of the Income Tax Act, 1961 is not a court but is merely a tribunal exercising the judicial power of the State. As the provisions of the Limitation Act are not intended to be made applicable to proceedings before authorities other than courts governed by the Code of Civil Procedure or the Code of Criminal Procedure, Section 5 of the Limitation Act, will not apply to applications made to the Appellate Tribunal and, therefore, the Tribunal has no power to condone delay in filing reference applications under Section 66(1) of the Income Tax Act, 1961. In  Comm. of Agrl. I.T. v Thalayar Rubber Industries 131 ITR 162 a Full Bench of Kerala High Court has held that Section 69 of the Kerala Agricultural Income Tax Act, 1950, indicates that provisions of sections 4 to 24 of the Limitation Act are not attracted to proceedings under the Act and the Tribunal has no jurisdiction to condone delay in filing an application for reference under Section 60(1) of the said Act. In Insp. Asst CIT v. Kedar Nath Jhunjhunwalla 133 ITR 746 a Division Bench of Patna High Court has held that Section 29(2) of the Limitation Act will apply to appeals and applications filed under a special law only where the scheme of the special law does not exclude its application. Neither the provision of Section 5 nor that of Section 12(2) of the Limitation Act will apply to appeals filed under Section 269H of the Income Tax Act, 1961.

 

12. On the conspectus of the decisions referred to above and their ratio it would be clear that the authorities constituted under the Delhi Sales Tax Act for deciding tax dues are not courts but tribunals and unless there is express power conferred by the said Act to condone delay or exclude any period of limitation, the tribunals would not be clothed with the power to condone delay. Insofar as Section 62 of the Act is concerned it would be clear that only provisions of Section 4 and 12 of the Limitation Act will apply to proceedings under Section 47 of the Act. The Delhi Sales Tax Act being a special law and having regard to provisions of Section 62 of the said Act it is obvious that the Revisional Authority has no jurisdiction to condone delay except to the extent provided by Section 4 and 12 of the Limitation Act. The Revisional Authority under the Act exercising quasi judicial power is not being a court, the Legislature by virtue of Section 62 has conferred power to condone delay only to the extent mentioned in  Section 4 and 12 of the Limitation Act. Section 5 of the Limitation Act thus clearly has been excluded to the proceedings under Section 47 of the Act.

 

13. It has been consistently held by the Supreme Court that the applicability of the provisions of Section 2 to 24 of the Limitation Act has to be judged not from the terms of the Limitation Act but the provisions of the special law to ascertain whether it is a complete code in itself which does not admit the application of any of the provisions of the Limitation Act mentioned in Section 29(2) of the said Act. In Hukumdev Narain Yadav v. Lalit Narain Mishra reported in AIR 1974 SC 480 the issue before the Supreme Court was whether the provisions of Sections 4 to 24 of the Limitation Act would be applicable to election petitions, considering Section 29(2) of the Limitation Act. The Court observed that under Section29(2) where a special or local law provides for any suit, appeal or application a period different from the period prescribed therefore by the Schedule, the provisions specified therein will apply only insofar as and to the extent to which they are expressly not excluded by such special or local law. Under Section 29(2) of the Limitation Act, 1908, as amended in 1922, only Section 4, Sections 9 to 18 and Section 22 of that Act applied ordinarily unless excluded by a special or local law. The Court then noted the amendment made in the Act of 1963 to Section 29(2) whereby the amended section incorporates two changes namely (i) a uniform rule-making it applicable to all applications except those mentioned therein, and (ii) to all special and local enactments unless excluded by any of them. After considering various judgments the Court held that the provisions of Section 5 of the Limitation Act do not govern the filing of election petitions or their trial , though in an appellate forum from an order of the High Court to the Supreme Court the provisions would apply considering that an appeal is a creature of statute.

 

14. In Fairgrowth Investments v. Custodian reported in (2004) 11 SCC 472, the Supreme Court while considering the provisions of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 and considering Section 29(2) of the Limitation Act examined whether the provisions of Section 4 to 24 of the Limitation Act would apply. The powers of a Special court are exercised by a judge of a High Court. The Court posed itself a question whether the Act expressly or necessarily excludes the provisions of Limitation Act and answered the issue as under:

 

We think it does. The fact that it has provided for a power to condone delay under section 10(3) of the Act, shows that Parliament had consciously excluded the power of the court in relation to section 4(2). This view also finds support in the decision of this Court in Gopal Sardar v. Karuna Sardar (2004) 4 SCC 252. The statutory provision under consideration in that case was section 8 of the West Bengal Land Reforms Act, 1955 . It was held;

 

When the same statute in respect of various other provisions relating to filing of appeals and revisions, specific provisions are made so as to give benefit of section 5 of the Limitation Act and such provision is not made to an application to be made under Section 8 of the Act, it obviously and necessarily follows that the Legislature consciously excluded the application of Section 5 of the Limitation Act.

 

The Court then observed that in Union of India v. Popular Construction Company (2001) 8 SCC 470 the Court had held that the expression exclusion also includes exclusion by necessary implication. Proceeding to answer the issue the Court held that considering the power to condone the delay under Section 10(3) of the Act, the Parliament had consciously excluded power of the Court in relation to Section 4(2).

 

15. In Union of India v. Popular Construction Company (supra) the issue was whether the provisions of Section 4 to 24 of the Limitation Act would apply to a petition filed under Section 34 of the Arbitration and Conciliation Act, 1996. The challenge to an arbitration award under Section 34 is before a Civil Court. The Supreme Court observed as under:

 

Had the proviso to section 34 merely provided for a period within which the Court could exercise its discretion, that would not have been sufficient to exclude sections 4 to 24 of the Limitation Act because mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of section 5.

 

The Court then observed as under:

 

As far as the language of section 34 of the 1996 Act is concerned, the crucial words are but not thereafter used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of section 29(2) of the Limitation Act, and would therefore bar the application of section 5 of that Act. Parliament did not need to go further. To hold that he court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase but not thereafter; wholly otiose. No principle of interpretation would justify such a result.

 

16. In L.S. Synthetics Ltd v. Fairgrowth Financial Services Ltd and another AIR 2005 SC 1209 the Court held that the provisions of the Limitation Act have no application so far as the directions required to be issued by the Special Court(Trial of Offences Relating to Transactions in Securities) Act 1992 and in that regard made the following observations :

 

The Limitation Act, 1963 is applicable only in relation to certain applications and not all application despite the fact that the words other proceedings were added in the long title of the Act in 1963. The provisions of the said Act are not applicable to the proceedings before bodies other than Courts such as quasi-judicial tribunal or even an executive authority. The Act primarily applies to the civil proceedings or some special criminal proceedings. Even in a Tribunal, where the Code of Civil Procedure or Code of Criminal Procedure is applicable; the Limitation Act , 1963 per se may not be applied to the proceedings before it. Even in relation to certain civil proceedings, the Limitation Act may not have any application. As for example, there is no bar of limitation for initiation of a final decree proceedings or to invoke the jurisdiction of the Court under Section 151 of the Code of Civil Procedure or for correction of accidental slip or omission in judgments, orders or decrees; the reason being that these powers an be exercised even suo motu by the Court and, thus, no question of any limitation arises.

 

17. In Damodaran Pillai v. South Indian Bank Ltd. reported in (2005) 7 SCC 300, the Supreme Court was considering whether the provisions of Section 5 of the Limitation Act would be applicable to the proceedings under Order 21 of the Code of Civil Procedure. The Court observed as under :

 

It is also trite that the civil court in the absence of any express power cannot condone the delay. For the purpose of condonation of delay in the absence of applicability of the provisions of Section 5 of the Limitation Act, the court cannot invoke its inherent power.

 

18. Section 62 of the Delhi Sales Tax Act clearly indicates that only two provisions of Section 4 and 12 of the Limitation Act are attracted in proceedings under Section 47 of the Act and is intended to be a self-contained code in the matter for prescribing the period of limitation under the Act. Therefore the provisions of Section 5 of the Limitation Act have no application to proceedings under Section 47 of the Act. We find absolutely no merit in the submission made on behalf of the petitioner based on Rule 36(4) of the Delhi Sales Tax Rules. Rule 36(4) provides that for filing an appeal which is made after the expiry of the period specified in sub-Section 3 of Section 43 shall be accompanied by a petition setting out the facts showing sufficient cause for not preferring the appeal within the said period. Section 43(1) of the Act confers power on the Appellate Authority to condone delay in case sufficient cause is shown and Rule 36(4) merely prescribes the procedure for filing an application for condonation of delay in preferring the appeal. By virtue of Rule 39 of the Rules the provisions of Rule 36 to 38 have been made applicable mutatis mutandis for revisions under Section 47 of the Act. Rule 36(4) will have no application in respect of proceedings under Section 47 in as much as Revisional Authority is not conferred any power to condone delay. By enacting Section 62(2) the legislature has clearly indicated that the provisions of the Limitation Act except Sections 4 and 12 are excluded insofar as proceedings under Section 47 are concerned. Rule 36(4) cannot by any stretch of imagination said to be conferring power for condonation of delay on the Revisional Authority exercising power under Section 47 of the Act.

 

19. In view of the foregoing discussion, we are of the opinion that Section 5 of the Limitation Act does not apply to proceedings under Section 47 of the Delhi Sales Tax Act. Reference is answered accordingly.

 

The Registry is directed to place the petitions before the appropriate Bench for further proceedings.

 
 
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