9911796707
TMI Blog2000 (8) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... against the order dated March 27, 1998 passed by the Excise and Taxation Officer-cumAssessing Authority, Rewari (respondent No. 2) holding the petitioner liable to pay tax amounting to Rs. 85,571 was entertained by the Joint Excise and Taxation Commissioner (Appeals), Faridabad Circle, Faridabad (respondent No. 3) on November 5, 1998 subject to the condition of furnishing surety bond but, later on, by an order dated November 30, 1998, the said respondent dismissed the appeal as barred by limitation. The review petition filed by the petitioner under section 41 was also dismissed by respondent No. 3 on October 5, 1999 and appeal against that decision was dismissed by the Sales Tax Tribunal (for short, "the Tribunal"). 3.. Shri Avneesh Jhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay in filing the reference application can 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 order of the Tribunal against which reference is sought?" 5.. It was argued on behalf of the State that in the absence of any provision in the Punjab General Sales Tax Act, 1948 for condonation of delay, a reference application filed after the expiry of the period of limitation cannot be entertained. While rejecting that argument, the Full Bench observed as under: "We are unable to appreciate the argument in view of the clear provision contained in section 29(2) of the Limitation Act and in the absence of an express provision to the contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, 1975 was dismissed by the concerned authority as barred by limitation. Before this Court, it was argued that the rule prescribing the period of limitation is directory and, therefore, the application could not have been dismissed as barred by time. While rejecting this argument, the court held as under: "The argument of the learned counsel for the petitioner is that even though the application for exemption was not filed within 90 days of the unit going into commercial production, the petitioner is still entitled to the exemption from the period of 90 days immediately preceding the date of the application whenever such application is made. We find no merit in this contention which is contrary to the plain reading of the rule. If the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us clear that the application for exemption was filed much beyond the period of 90 days and the same was rightly rejected both by the Higher Level Screening Committee and by the appellate authority. In this view of the matter, no fault can be found with the impugned orders." 9.. A careful reading of the abovementioned judgment shows that the question as to whether the provisions of the Limitation Act, 1963 can be applied for deciding an appeal/application filed under the 1973 Act or the Rules framed thereunder was neither raised nor decided by the division Bench and this must be the reason why the division Bench did not notice the judgment of the Full Bench in Bharat Rubber and Allied Industries v. State of Punjab [1980] 46 STC 367 (P H). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal of the petitioner's appeal as barred by time and confirmation thereof by the Tribunal is vitiated by a patent error of law and, therefore, the impugned orders deserve to be quashed. The assumption on which respondent No. 3 proceed d to decide the appeal, namely, the absence of power to condone the delay will have to be treated as erroneous in view of the judgment of the Full Bench in Bharat Rubber and Allied Industries v. State of Punjab [1980] 46 STC 367 (P H), and of the Division Bench in Shivam Riceland v. State of Haryana (C.W.P. No. 16973 of 1998 decided on May 10, 2000)-[2001] 123 STC 23 (P H). Therefore, the order passed on the basis of such assumption cannot be sustained. 12.. In the result, the writ petition is allowed. Order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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