2016 (4) TMI 319 - HC - VAT and Sales Tax

Period of limitation - Invokation of Section 61(1) of the Bombay Sales Tax Act, 1959 - Held that - an order of the court cannot override the legal provision and which is specific in nature. The court cannot, by recording any concession and of the present nature, waive the period of limitation statutorily prescribed. That binds all, including the Revenue. This court cannot, in its inherent jurisdiction, give a go by to such a statutory prescription and we do not think any judgment needs to be referred to, for, the law is clear. A statutory prescription and under an enactment, which has been enacted by the competent legislature, can only be interpreted by this court. The court cannot prescribe any period of limitation contrary thereto nor can it re-frame or re-word the statutory provision itself. Statute of limitation or a statutory provision prescribing a period of limitation and incapable of two interpretations ought to be construed by its terms. It the language is plain, unambiguous and clear, there is no scope for interpretation. We cannot whittle down or dilute the effect or rigor of the clear provision on some specious, general and vague plea or assumption of hardship and inconvenience to an individual. There is no power in this court to entertain a time barred application as the general power under section 5 of the Limitation Act, 1963 is restricted in its application to proceedings under section 61(1) of the Bombay Sales Tax Act, 1959. Therefore, the review order is of no assistance to the applicant. Whether the attempt is to seek re- appreciation and re-appraisal of the factual findings is one more attempt to delay the recoveries - Held that - the Tribunal has found that there are no debatable legal issues involved. It has decided the matter by applying the correct legal principles. Also the Tribunal, in the order passed on 30th November, 2009, found that the whole attempt appears to be to revisit the same transactions and the same factual findings. The Tribunal found that all the transactions and which have been noted, either undertaken directly by the applicant or through their agents, were falling in the tax net. There was no proof of any inter-State sale. There was nothing on facts which could determine or enable the Tribunal to conclude that the assessment order and the first appellate authority s order are vitiated on law and facts. The Tribunal found that the applicant, for the period in question, namely, 1990-91, 1991-92, 1992-93, filed second appeals before the Tribunal. These second appeals were dismissed on 30th November, 2009. The Tribunal found that all the issues, which could have been raised, have been already raised and dealt with. Now, in the garb of seeking a reference of certain legal questions to this court for its answer and opinion, the recoveries cannot be delayed. Therefore, the Tribunal is right in concluding that this is one more attempt to delay the recoveries. - Decided against the appellant

Summary

Issues:
1) Interpretation of questions of law for reference
2) Alternative remedy under section 61 of Bombay Sales Tax Act, 1959
3) Time-barred applications and statutory limitations
4) Perversity in finding of facts and misconduct in evidence evaluation
5) Revisiting factual findings and delay in recovery of dues

Interpretation of questions of law for reference:
The applicant sought reference of questions of law in Sales Tax Application No. 3 of 2016, which were reviewed by the court. The court concluded that none of the questions raised could be categorized as questions of law. The Division Bench emphasized that even if the Tribunal's order was correct, the appropriate remedy was not a writ petition under Article 226 but invoking section 61(1) of the Bombay Sales Tax Act, 1959.

Alternative remedy under section 61 of Bombay Sales Tax Act, 1959:
The court noted that against the Tribunal's order, the applicant had filed a writ petition which was dismissed, emphasizing the availability of an alternative remedy under section 61. A review petition was filed, arguing that the remedy under section 61 was time-barred. The court directed that if the petitioners pursued the alternate remedy in accordance with the law, it would be entertained without raising objections on the ground of limitation.

Time-barred applications and statutory limitations:
The court addressed the argument that the applications were time-barred, emphasizing that a court order could not override statutory limitations. The court highlighted that a statutory prescription must be adhered to and cannot be waived by the court, even if there are concessions. The court reiterated that it lacked the power to entertain time-barred applications, as the law was clear on statutory limitations.

Perversity in finding of facts and misconduct in evidence evaluation:
The court analyzed the contentions regarding perversity in the finding of facts and misconduct in evidence evaluation. It was observed that the issues raised were mixed questions of fact and law, aiming at re-evaluating factual findings rather than demonstrating perversity. The court concluded that the attempts were to delay the recovery of dues without valid legal grounds.

Revisiting factual findings and delay in recovery of dues:
The Tribunal's detailed order highlighted that the applicant's attempts were to revisit the same transactions and factual findings without substantial legal grounds. The Tribunal found that all transactions were within the tax net, and there was no evidence of inter-State sales. The court concurred with the Tribunal's findings, emphasizing that the applications were another attempt to delay recoveries impermissibly. Consequently, all applications were dismissed to prevent further delays in revenue recovery.