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TMI Blog1970 (1) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... 0th May, 1963. The appeals were dismissed in default by virtue of rule 68(5) of the U.P. Sales Tax Rules. Rule 68(5) allowed dismissal of appeals in default. Sub-rule (6) of rule 68 provided for setting aside the dismissal in default and for the readmission of the appeal. In accordance with sub-rule (6), the respondent made two applications for setting aside the dismissal in default and for readmission of the appeals. While these applications were pending, Manchanda, J., held in a case that sub-rule (5) of rule 68 was ultra vires the rule-making authority and that the appellate authority could not dismiss an appeal in default. He held that the appeal should be decided on merits even though the appellant be absent. When the applications came up for hearing on 10th October, 1964, the appellate authority dismissed them outright in view of the decision of Manchanda, J. Then the respondent filed two revisions under section 10 of the Act. Section 10 prescribes a period of limitation for filing a revision. The maximum period of limitation is one year and six months. But the revisions were filed beyond this maximum period. The Judge (Revisions) gave the benefit of section 14, Limitation Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a proceeding for vindicating a civil right. In these cases there was an assessment of tax on the respondent. The respondent filed appeals in order to get rid of the assessments. 'The assessments would deprive them of a certain amount of money. So they were seeking a relief in respect of a civil right to property. The appeals accordingly constituted a civil proceeding. A civil proceeding will include a proceeding which seeks relief against the enforcement of a taxation statute. "The primary object of a taxation statute is to collect revenue for the governance of the State or for providing specified services and such laws directly affect the civil rights of the taxpayer. If a person is called upon to pay tax which the State is not competent to levy, or which is not imposed in accordance with the law which permits imposition of the tax, or in the levy, assessment and collection of which rights of the taxpayer are infringed in a manner not warranted by the statute, a proceeding to obtain relief whether it is from the tribunal set up by the taxing statute, or from the civil court would be regarded as a civil proceeding": (per Shah, J., in S.A.L. Narayan Row v. Ishwarlal BhagwandasA.I.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strict sense of the term. So it is necessary to ascertain whether the word "court" is used in sub-section (2) of section 14, Limitation Act, in its wider sense or in its strict sense. Judicial opinion appears to be divided on this issue. In Firm Behari Lal Baijnath Prasad v. Punjab Sugar Mills Co., Ltd.A.I.R. 1943 All. 162., a Division Bench of this court held that an arbitrator appointed by parties to settle their dispute is a "court" within the meaning of sub-section (1) of section 14, Limitation Act. The view of the Division Bench was followed by the Nagpur High Court in Fatehchand Ganeshrain v. Wasudeo ShrawanA.I.R. 1948 Nag. 334. as well as by the Rajasthan High Court in Bhupendra Singh v. Thakur Gulab SinghA.I.R. 1966 Raj. 92. But the Bombay High Court has taken a different view. It has held that sub-section (1) of section 14 applies to judicial courts and not to domestic forums or tribunals (Parshottam Das Hassaram v. Impex (India) Ltd.A.I.R. 1954 Bom. 309. In Noor Ali v. Kanpur Omnibus Service Ltd.A.I.R. 1955 All. 707., a learned Single judge of this court held that the authority appointed under section 15(1), Payment of Wages Act, is not a "court" within the meaning of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (2) of section 14, Limitation Act, signifies a "court" in stricto sensu. We are also referred to some cases under Acts other than the Limitation Act. In Thakur Jugal Kishore v. The Sitamarhi Central Co-operative Bank Ltd.A.I.R. 1967 S.C. 1494., the Registrar, Co-operative Societies, was held to be a court for purposes of the Contempt of Courts Act. In Sri Gila Mitra v. S.P. GhoshA.I.R. 1953 Cal. 297., the Rent Controller appointed under the West Bengal Rent Control Act was held not to be a court. These cases are not concerned with sub-section (2) of section 14, Limitation Act, and, therefore, they are of little help in our difficulty. The immediate context of sub-section (2) appears to suggest that the word "court" signifies a court in the strict sense. Sub-section (1) of section 14 provides that in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or in a court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which, fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act judicially, but still remain an administrative tribunal as distinguished from a court, strictly so-called. Mere externals do not make a direction to an administrative officer by an ad hoc tribunal an exercise by a court of judicial power." We may also recall various authorities to the effect that a proceeding for mutation of names under the Land Revenue Act is a fiscal proceeding and not a proceeding before a court. (Muhammad Subhan Ullah v. Secretary of State[1904] I.L.R. 26 All. 382. In view of the Supreme Court decision in Nityanand's case[1969] 2 S.C.C. 199. and other decisions as well as the context of section 14(2) it seems to me that the appellate authority under section 9 and the revising authority under section 10 are not a "court" within the meaning of that term in sub-section (2) of section 14, Limitation Act. But it does not conclude the matter. It is still to be seen whether the principle underlying sub-section (2) of section 14 will apply to the cases before us. In Ramdutt Ramkissen Dass v. E.D. Sassoon and Co.A.I.R. 1929 P.C. 103., the Privy Council extended -the principle of section 14 to the proceedings before an arbitrator. There appears to be no reason why ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question so reframed is that the time spent in prosecuting the application for setting aside the order of dismissal of appeals in default can be excluded from computing the period of limitation for filing the revision by the application of the principle underlying section 14(2), Limitation Act. As the respondent has not appeared, there is no order as to costs. Counsel's fee is fixed at Rs. 200. SINGH, J.-I have had the advantage of reading the opinion prepared by my learned brother Dwivedi, J., and I agree with the proposed answer to the question reframed by him. However, I am further of opinion that with the aid of section 29, sub-clause (2), of the Indian Limitation Act, the answer to the question referred could also be given in the affirmative even without refraining the question referred. The facts of the case as well as the question referred have already been given by my learned brother and I do not propose to repeat the same nor do I propose to refer to all those authorities mentioned in his judgment. Section 29, sub-clause (2), of the Indian Limitation Act, reads as follows: "Where any special or local law prescribes for any suit, appeal or application a period of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roviding the applicability of section 5 of the Limitation Act to these proceedings. The intention of the Legislature appears to be to treat these tribunals as courts for the purposes of sections 4, 9 to 18 and 22 of the old Limitation Act. It has to be remembered that the U.P. Sales Tax Act was passed in the year 1948 when the old Limitation Act was applicable and under the old Limitation Act unless section 5 was specifically made applicable it could not be applied and sections 4, 9 to 18 and 22 of the Limitation Act could be applied in terms of section 29(2) of the Limitation Act. This is why it appears that section 5 was expressly made applicable and the other provisions were left to be applied by virtue of section 29(2) of the Limitation Act. Section 14 of the Limitation Act contains a general principle which is based on justice, equity and good conscience and it would not be proper to place a narrow construction upon the word "court" in it as was held in Firm Ramnath Ramachandra v. Firm Bhagatram and Co. A.I.R. 1959 Raj. 149. In K.B. Mohammad Maqsood Ali Khan v. B. Hoshiar Singh and OthersA.I.R. 1945 All. 377., a Division Bench of this court held that: "The operation of secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 of the U.P. Sales Tax Act in each case for referring to this court the question of law arising out of the revisional order. The Judge (Revisions) framed the following question and referred it to this court: "Whether under the circumstances of the case section 14 of the Limitation Act extended the period for filing of the revisions by the time during which the restoration applications remained pending as being prosecuted bona fide?" Section 14(2) of the Limitation Act can apply to proceedings under section 10 of the U.P. Sales Tax Act only if the same could be made applicable by virtue of section 29(2) of the Limitation Act, and in its turn section 29(2) will apply only if the U.P. Sales Tax Act, which is a special law, prescribed for revisional applications a period of limitation different from the period prescribed by the Schedule to the Limitation Act. Section 10(3-B) of the U.P. Sales Tax Act does provide a period of limitation for the filing of revision before the judge (Revisions) Sales Tax under section 10(3)(i) of the Act. But the question is whether such a provision is sufficient to attract the provisions of section 29(2) of the Limitation Act. For this purpose it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Taxation [1931] A.C. 275., the Judge (Revisions) Sales Tax will be "in the nature of administrative machinery to which the taxpayer can resort at his option in order to have his contentions reconsidered. An administrative tribunal may act judicially, but still remain an administrative tribunal as distinguished from a court, strictly so-called." The Judge (Revisions) Sales Tax while hearing the revisions under section 10 of the U.P. Sales Tax Act does not act as a court but only as a revenue tribunal and hence the provisions of the Indian Limitation Act cannot apply to proceedings before him. If the Limitation Act does not apply then neither section 29(2) nor section 14(2) of the Limitation Act will apply to proceedings before him. The contention of the learned amicus curiae counsel that the revisional authority while acting under section 10 of the U.P. Sales Tax Act should for the purposes of the Limitation Act be deemed to be a court because section 5 of the Limitation Act had been made applicable to the appeals under section 9 and reference applications under section 11(1) and (3) of the Act cannot be sustained. So far as revisions under section 10 are concerned se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity of section 12 of the Limitation Act to proceedings under section 11(1) of the Act and the answer was that section 12 was not applicable, the decision in that case cannot be held to be an authority for the proposition that the provisions of section 29(2) of the Indian Limitation Act were applicable to proceedings before the Judge (Revisions) Sales Tax. Further in view of the clear observations made by the Supreme Court in the subsequent cases of Town Municipal Council, Athani[1969] 1 S.C.C. 873. and Nityanand M. Joshi[1969] 2 S.C.C. 199., it cannot be held that section 29(2) or any other provision of the Indian Limitation Act would apply to proceedings under section 10 of the U.P. Sales Tax Act. The reason is that judge (Revisions) Sales Tax does not act as a court within the meaning of the Limitation Act. Even if it be assumed that section 29(2) of the Act can be attracted to proceedings before tribunals which are not courts, strictly socalled, the same cannot be applicable to a revision application under section 10 of the U.P. Sales Tax Act as it is not such an application as is contemplated by section 29(2) of the Limitation Act. For considering if a different period of limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation Act are only those which are filed in ordinary courts exercising regular civil or criminal jurisdiction. As no specific article in the Schedule to the Act is applicable to the revisions filed before the Judge (Revisions) Sales Tax under section 10 of the U.P. Sales Tax Act, it will have to be examined if the provisions of section 29(2) of the Limitation Act can be attracted even though no period of limitation for such revisions is provided in the Schedule. It is possible for section 29(2) of the Indian Limitation Act to be attracted to proceedings for which no limitation in the First Schedule of the Limitation Act is prescribed. This was so held in Vidyacharan Shukla v. Khub Chand Baghel and OthersA.I.R. 1964 S.C. 1099. and Kaushalya Rani v. Gopal SinghA.I.R. 1964 S.C. 260. But in these cases the proceedings were to be before a court strictly so-called and, therefore, to them the provisions of the Indian Limitation Act were applicable by force of the enactment itself. The condition precedent appears to be that the proceedings to which section 29(2) is to be applied must be before a court, viz., a court exercising regular civil or criminal jurisdiction. In the present case t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Sales Tax Act only such questions can be referred to the High Court as arise out of the revisional order. The jurisdiction of the High Court is neither appellate nor revisional nor supervisory. As held by the Supreme Court in the case of Commissioner of Income-tax v. Scindia Steam Navigation Co., Ltd.[1961] 42 I.T.R. 589 (S.C.)., the High Court acts purely in an advisory capacity on which the tribunal ultimately acts, and "It is of the essence of such jurisdiction that the court can decide only questions which are referred to it and not any other question.........If the true scope of the jurisdiction of the High Court is to give advice when it is sought by the Tribunal, it stands to reason that the Tribunal should have had an occasion to consider the question so that it may decide whether it should refer it for the decision of the court. How can it be said that the Tribunal should seek for advice on a question which it was not called upon to consider and in respect of which it had no opportunity of deciding whether the decision of the court should be sought." The law as it emerges from the various cases decided by the Supreme Court is that the question which can be answere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that the Judge (Revisions) Sales Tax acting under section 10 of the Act was not a court still he was entitled to the benefit of the principle of section 14 of the Limitation Act for computing the period of limitation for filing of a revision under section 10 of the U.P. Sales Tax Act. The Judge (Revisions) Sales Tax never applied his mind to this proposition and the Commissioner of Sales Tax did not get any opportunity to show that the principles of the provisions of section 14 of the Limitation Act could not be resorted to while computing the period of limitation for the revision. It cannot, therefore, be said that the question now suggested was ever raised before the tribunal or was dealt by it. In the case of Commissioner of Income-tax v. Scindia Steam Navigation Co. Ltd.[1961] 42 I.T.R. 589 (S.C.). , while summing up, the Supreme Court observed: "(4) When a question of law is neither raised before a Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the findings given by it. Stating the position compendiously, it is only a question raised before or decided by a Tribunal that could be held to arise o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned by the Indian Limitation Act. An arbitrator decides disputes between the parties and is for all purposes a court, being a court appointed by the parties concerned instead of being a statutory court. The provisions of the Indian Limitation Act have been held to be applicable to claims before an arbitrator. The decision in the case of Ramdutt Ramkissen Dass v. E.D. Sassoon Co.A.I.R. 1929 P.C. 103. only rules that if a claim before the arbitrator is to be governed and controlled by the provisions of the Limitation Act there was no reason for not applying the principles of section 14 of the Limitation Act to proceedings before him. This case has been explained in Purshottamdass Hassaram Sabnani v. Impex (India) Ltd. A.I.R. 1954 Bom. 309. If any claim or proceeding before the arbitrator is to be governed by the period of limitation fixed in the Limitation Act by a process of analogy, then the provisions of section 14 of the Limitation Act will certainly be attracted for computing the period of limitation by the same analogy; but once the proceedings before a tribunal are not to be controlled by the period of limitation prescribed in the Limitation Act no provision of the Limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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