2014 (12) TMI 955 - HC - VAT and Sales Tax

Maintainability of condonation application - Condonation of delay in filing the Sales Tax Application Whether if the Application filed under the proviso to section 61(1) is filed beyond 90 days, can this Court take recourse to section 5 of the Limitation Act, 1963 - Held that - In The Commissioner of Sales Tax, Maharashtra State, Mumbai vs. N.H. Polymers 2007 (11) TMI 563 - BOMBAY HIGH COURT wherein it has been already held that the Court has no power to condone the delay in filing of these Applications - it is not possible to agree that the period of 90 days provided in the proviso for approaching the Court against the refusal of the Tribunal to refer any question of law is not a rule or provision of limitation - 90 days is a period provided for both sub section (1) substantively and the proviso - this period or stipulation of time or provision of limitation binds the parties the contention cannot be accepted because it is not the word only referred by the Division Bench but a conjoint and combined reading of the legal provisions referred enables to hold that application of section 5 of the Limitation Ac, 1963 is excluded. The legislative intent to exclude the applicability of section 5 of the Limitation Act, 1963 has to be found out with reference to the nature of the power which is invoked and which is requested to be exercised, whether a party or person has absolute right to invoke it and equally whether the Court can exercise it and all this has to be examined with reference to the provisions of the special law - It is not that an express exclusion must be found in the section which is being construed or interpreted namely, section 61 of the Bombay Sales Tax Act, 1959 - It is possible to arrive at the conclusion and which has been arrived by the Division Bench by a combined or conjoint reading of the legal provisions as ultimately the statute must be read as a whole - Its provisions have to be read together and harmoniously so as to discern the legislative intent thus, the Court have no power to condone the delay in filing of the Sales Tax Applications - The Notices of Motion are therefore dismissed Decided against petitioner.

Summary

Issues Involved:
1. Condonation of delay in filing the Sales Tax Application.
2. Jurisdiction under Section 61(2) of the Bombay Sales Tax Act, 1959.
3. Applicability of Section 5 of the Limitation Act, 1963.
4. Judicial discipline and binding precedents.

Issue-wise Detailed Analysis:

1. Condonation of Delay in Filing the Sales Tax Application:
The Revenue sought condonation of a 90-day delay in filing the Sales Tax Application. The application was initially filed directly before the High Court, which was not the proper remedy. The correct procedure was to invoke the Court's jurisdiction under Section 61(2) of the Bombay Sales Tax Act, 1959. The Revenue argued that important questions of law required answers and that the delay should not prevent the Court from considering them.

2. Jurisdiction Under Section 61(2) of the Bombay Sales Tax Act, 1959:
Section 61 of the Act allows for referring questions of law to the High Court. The application must be made within 90 days from the date of the Tribunal's order. If the Tribunal refuses to state the case, the applicant can apply to the High Court within 90 days of such refusal. The High Court can require the Tribunal to state the case if it is not satisfied with the Tribunal's decision.

3. Applicability of Section 5 of the Limitation Act, 1963:
The Revenue contended that Section 5 of the Limitation Act, which allows for condonation of delay, should apply. However, the Court referred to the precedent set in Commissioner of Sales Tax, Maharashtra State, Mumbai vs. N.H. Polymers, which held that Section 5 of the Limitation Act does not apply to applications under Section 61 of the Bombay Sales Tax Act. The Court emphasized that the legislative intent was to exclude the applicability of Section 5, as evidenced by a combined reading of Sections 59 and 60 of the Bombay Sales Tax Act.

4. Judicial Discipline and Binding Precedents:
The Court highlighted the importance of judicial discipline, stating that it must follow the binding precedent set by the Division Bench in Commissioner of Sales Tax, Maharashtra State, Mumbai vs. N.H. Polymers. The Revenue's attempt to challenge this precedent was discouraged. The Court also referred to the Supreme Court's decision in State of M.P. and Anr. vs. Anshuman Shukla, which reinforced the principle that special statutes with specific limitation periods exclude the applicability of Section 5 of the Limitation Act.

Conclusion:
The Court concluded that it had no power to condone the delay in filing the Sales Tax Applications, as per the binding precedent. The Notices of Motion were dismissed without any order as to costs.