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TMI Blog1975 (9) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... llness was also filed. The first appellate authority dismissed the appeal by saying that he had no jurisdiction to condone the delay. The Tribunal in second appeal placed reliance on the decision of the Supreme Court in the case of Commissioner of Incometax v. National Finance[1962] 44 I.T.R. 788 (S.C.)., and upheld the order of the Assistant Commissioner. 3.. Section 23(1) provides: "Within thirty days from the date of receipt of the copy of(a) an order of assessment with or without penalty under section 12, 12-A or 12-B; or...... any dealer or person, as the case may be, may, in the prescribed manner appeal to the prescribed authority against such order." In the original Act of 1947 power had not been conferred on the first appellate authority to admit appeals filed beyond thirty days. Under Orissa Act 27 of 1951 the following proviso was inserted to sub-section (1) of section 23 of the Act: "Provided further that the prescribed authority may admit the appeal after the period hereinbefore specified if the said authority is satisfied that the dealer has sufficient cause for not preferring the appeal within the said period." Section 23 underwent substantial amendments by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich, they are not expressly excluded by such special or local law." The change in the two provisions is of substantial character. While under the old provision the sections not stated in clause (a) were not to apply, under the new provision sections 4 to 24 of the Limitation Act were made applicable unless their application was expressly excluded. A Bench of this Court in Raghunath Agarwalla v. State of Orissa [1975] 36 S.T.C. 461. (O.J.C. No. 654 of 1973 disposed of on 16th January, 1975) dealt with the applicability of section 5 of the Limitation Act to a proceeding under section 24(1) of the Orissa Sales Tax Act. Under section 24(1), an application is required to be filed within sixty days of the receipt of the copy of the order of the Tribunal or the Additional Tribunal, as the case may be, made under section 23(3) of the Act. There is no provision authorising the Tribunal to extend the period of filing of such an application by condoning the delay. At the instance of the State, the Tribunal condoned the delay in making of the application under section 24(1) of the Act. The assessee had challenged the order of the Tribunal as being without jurisdiction before this court. Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption therefrom." The provision as found in section 18(1)(b) of the Kerala Act Is not available in the Orissa Act under consideration. The additional reasoning, therefore, is of no avail in this case. The two Supreme Court cases may now be referred to. In the case of Athani Municipality v. Labour Court, Hubli A.I.R. 1969 S.C. 1335., the question for consideration was whether article 137 of the Schedule of the Limitation Act applied to a proceeding under section 33C(2) of the Industrial Disputes Act. The court observed: "It appears to us that the view expressed by this court in those cases (Sha Mulchand Co. Ltd. v. Jawahar Mills Ltd., Salem A.I.R. 1953 S.C. 98. and Bombay Gas Co. Ltd. v. Gopal BhivaA.I.R 1964 S.C. 752.) must be held to be applicable even when considering the scope and applicability of article 137 in the new Limitation Act of 1963. The language of article 137 is only slightly different from that of the earlier article 181 inasmuch as, when prescribing the three years' period of limitation, the first column giving the description of the application reads as 'any other application for which no period of limitation is provided elsewhere in this division'. In fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he special law are given the power of the court under section 5 of the Limitation Act to condone the delay. These deciding authorities may or may not be courts. This, according to me, is the principle on which the provisions of the Limitation Act are made applicable to proceedings under the various special laws. A conclusion that the proceeding under the special law should be before ordinary (civil and criminal) courts alone in order that the provision of section 5 can be applied is not warranted by the provisions of the various special laws and the Limitation Act. If the terms of section 5 are applicable only to courts, by the same terms they can apply only to cases where the Limitation Act prescribes periods of limitation, for, that section speaks of 'prescribed period' as well. That means the provisions contained in section 5 cannot be made applicable to periods prescribed by special laws, a conclusion not warranted by section 29(2) of the Limitation Act, 1908....... While in the old Act some sections were stated to be not applicable to the determination of the periods of limitation under special laws unless expressly extended by a special provision, in the new Act all the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e earlier decisions of the court in the cases of Ujjam Bai v. State of U.P.A.I.R. 1962 S.C. 1621. and Jagannath Prasad v. State of U.P.[1963] 14 S.T.C. 536 (S.C.); A.I.R. 1963 S.C. 416., to hold that the authorities under the U.P. Sales Tax Act are not courts and, therefore, came to the conclusion that section 14(2) can have no application to proceedings under the U.P. Sales Tax Act. The learned Judges after reading the provisions of the material part of section 10 of the U.P. Sales Tax Act, which runs thus: "(3)(i) The revising authority......... may for the purposes of satisfying itself as to the legality or propriety of any order made by any appellate or assessing authority under this Act, in Its discretion call for and examine, either on its own motion or on the application of the Commissioner of Sales Tax or the person aggrieved, the record of such order and pass such order as it may think fit........ (3-B) The application under sub-section (3) shall be made within one year from the date of service of the order complained of, but the revising authority may on proof of sufficient cause entertain an application within a further period of six months" observed: "Three feat ..... 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