1975 (9) TMI 158 - HC - VAT and Sales Tax

Issues Involved:
1. Entitlement to extension of time for filing an appeal.
2. Jurisdiction of the first appellate authority to condone delay.
3. Applicability of the Limitation Act to the Orissa Sales Tax Act.
4. Interpretation of section 29(2) of the Limitation Act, 1963.
5. Relevance of Supreme Court decisions on limitation laws.

Detailed Analysis:

1. Entitlement to Extension of Time for Filing an Appeal:
The primary issue was whether the assessee was entitled to obtain an extension of time for filing the appeal before the Assistant Commissioner of Sales Tax upon demonstrating a valid reason for the delay. The court concluded affirmatively, holding that the assessee was indeed entitled to such an extension upon satisfying the appellate authority of a good cause for the delay.

2. Jurisdiction of the First Appellate Authority to Condon Delay:
The first appellate authority dismissed the appeal on the grounds that it lacked jurisdiction to condone the delay. The Tribunal upheld this decision. However, the court analyzed the legislative amendments to section 23 of the Orissa Sales Tax Act and found that while the original Act did not confer such power, subsequent amendments had vested similar powers in the Tribunal. The court concluded that the Assistant Commissioner erred in rejecting the application for delay condonation as incompetent in law.

3. Applicability of the Limitation Act to the Orissa Sales Tax Act:
The court examined whether the provisions of the Limitation Act, particularly sections 4 to 24, applied to proceedings under the Orissa Sales Tax Act. The court referred to section 29(2) of the Limitation Act, 1963, which states that the provisions of sections 4 to 24 apply to special or local laws unless expressly excluded. The court concluded that these provisions, including section 5 (which allows for the condonation of delay), were applicable to the Orissa Sales Tax Act.

4. Interpretation of Section 29(2) of the Limitation Act, 1963:
The court analyzed the differences between the Limitation Act of 1908 and the Limitation Act of 1963. Under the 1963 Act, sections 4 to 24 were made applicable to special or local laws unless expressly excluded. This was a significant change from the 1908 Act, where only specified sections applied. The court held that by virtue of section 29(2) of the 1963 Act, the principles of section 5 were applicable to appeals under the Orissa Sales Tax Act.

5. Relevance of Supreme Court Decisions on Limitation Laws:
The court reviewed several Supreme Court decisions, including Commissioner of Sales Tax, U.P. v. Parson Tools Plants, Kanpur, and Nityanand v. L.I.C. of India, to determine their applicability. The court noted that these decisions did not directly address the issue at hand and were distinguishable. The court also referred to a Full Bench decision of the Kerala High Court in Jokkim Fernadez v. Amina Kunhi Umma, which supported the applicability of section 5 of the Limitation Act to proceedings under special laws. The court agreed with the minority view in this case, which stated that the principles of section 5 could be applied to authorities other than courts.

Conclusion:
The court concluded that by virtue of section 29(2) of the Limitation Act, 1963, the principles of section 5 were applicable to an appeal filed before the Assistant Commissioner of Sales Tax under section 23(1) of the Orissa Sales Tax Act. Therefore, the application for condonation of delay was maintainable, and the Assistant Commissioner erred in rejecting it. The Tribunal also erred in upholding the Assistant Commissioner's decision. The court answered the referred question in favor of the assessee, stating that the assessee was entitled to an extension of time for filing the appeal upon satisfying the appellate authority of a good cause for the delay.

Costs:
The assessee was awarded costs, with the hearing fee assessed at Rs. 200.

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