1980 (2) TMI 234 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Applicability of Section 12(2) of the Limitation Act to reference applications under Section 22 of the Punjab General Sales Tax Act.
2. Condonation of delay in filing reference applications under Section 5 of the Limitation Act.

Issue-wise Detailed Analysis:

Issue 1: Applicability of Section 12(2) of the Limitation Act to Reference Applications under Section 22 of the Punjab General Sales Tax Act

The primary question was whether the benefit of Section 12(2) of the Limitation Act could be extended to an applicant in a reference application filed under Section 22 of the Punjab General Sales Tax Act for the days spent in obtaining the certified copy of the Tribunal's order.

The court examined Section 29(2) of the Limitation Act, which states that the provisions of Sections 4 to 24 of the Limitation Act apply to special or local laws unless expressly excluded. The court noted that the Sales Tax Act did not expressly exclude Sections 5 and 12(2) of the Limitation Act. Thus, these sections would generally apply unless specifically excluded.

Section 12(2) of the Limitation Act excludes the time required for obtaining a copy of the decree, sentence, or order appealed from or sought to be revised or reviewed. The court clarified that the term "application" in Section 12(2) is limited to applications for leave to appeal, revision, or review, and does not extend to reference applications.

The court reviewed previous judgments, including the Supreme Court's decision in Commissioner of Sales Tax, U.P. v. Madan Lal Das & Sons, Bareilly, which supported the application of Section 12(2) to revisions under the U.P. Sales Tax Act. However, the court distinguished this case, noting that the term "application" in Section 12(2) is specifically qualified and does not include reference applications.

The court also considered the Full Bench decision of the Allahabad High Court in Gopaladas Sarvadayal v. Commissioner of Sales Tax, U.P., which held that Section 12(2) does not apply to reference applications. The court agreed with this view.

Thus, the court concluded that the benefit of Section 12(2) of the Limitation Act cannot be extended to reference applications under Section 22 of the Punjab General Sales Tax Act.

Issue 2: Condonation of Delay in Filing Reference Applications under Section 5 of the Limitation Act

The second question was whether the delay in filing the reference application could be condoned under Section 5 of the Limitation Act by extending the period of limitation by the number of days spent in obtaining the certified copy of the Tribunal's order.

The court reiterated that Section 5 of the Limitation Act applies to proceedings under the Sales Tax Act, as the Sales Tax Act does not expressly exclude it. Section 5 allows for the extension of the period of limitation if the applicant shows sufficient cause for the delay.

The court referred to the Division Bench decision in Piare Lal Khushbakhat Rai v. State of Punjab, which allowed the extension of the period of limitation by the number of days spent in obtaining the certified copy of the Tribunal's order under Section 5 of the Limitation Act. The court approved of this decision.

The court also overruled the decision in Gamsha Pipe Ltd. v. State of Haryana, which had held that Section 5 of the Limitation Act did not apply to proceedings under the Sales Tax Act, as it was contrary to the Supreme Court's decision in Madan Lal Das & Sons.

Thus, the court concluded that the delay caused in filing the reference application due to obtaining the certified copy of the Tribunal's order can be condoned under Section 5 of the Limitation Act.

Final Conclusions:

1. The benefit of Section 12(2) of the Limitation Act cannot be allowed to an applicant in a reference application filed under Section 22 of the Punjab General Sales Tax Act for excluding the time spent in obtaining the certified copy of the order of the Tribunal against which reference is sought.
2. The delay caused in filing the reference application due to obtaining the certified copy of the order of the Tribunal against which reference is sought can be condoned under Section 5 of the Limitation Act.

The case was referred back to the Division Bench along with C.W.P. No. 301 of 1980 for further proceedings.