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TMI Blog2007 (11) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... t maintainable. X X X X Extracts X X X X X X X X Extracts X X X X ..... d) Section 60. Extension of period of limitation in certain cases.--An appellate authority may admit any appeal under section 55 after the period of limitation laid down in the said section, if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within such period. Explanation.--For the purposes of this section, when an appeal is preferred under section 55 after the period of limitation laid down in that section, the ground that the appellant came to know of any judgment, decision or order of any court, Tribunal or other authority after the expiry of the period of limitation aforesaid (whether such judgment, decision or order was delivered or made before or after the expiry of that period), shall not be deemed to constitute a sufficient cause. Section 61. Statement of case to the High Court.--(1) Within ninety days from the date of the communication of the order of the Tribunal, passed in appeal being an order which affects the liability of any person to pay tax or penalty or interest or to forfeiture of any sum or which affects the recovery from any person of any amount under section 39, that person, the Additional Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore considering section 29(2) of the Limitation Act, only those provisions would be applicable which are specifically made applicable. Since the special law prescribes the period of limitation, the Sales Tax Act would be governed by the specific provisions of the Act of 1959. Section 5 of the Limitation Act would not be applicable, considering the provisions of sections 59 and 60 of the Act of 1959, which exclude expressly or by necessary implication, the application of the provisions of the Limitation Act except sections 4 and 12. Section 59 of the Act provides that in computing the period of limitation, only the provisions of sections 4 and 12 of the Limitation Act in so far as they relate to proceedings under the provisions of sections 55, 57 and 61 will apply. A literal reading of section 59 can only lead to the conclusion, that all proceedings under section 61, including under sub-section (1) or under its proviso, only the provisions of sections 4 and 12 of the Limitation Act would apply. Therefore, in such proceedings, the application of section 5 of the Limitation Act is expressly excluded. Section 60 of the Act of 1959 confers power for extension of period of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to confer power on the forum akin to other provisions of the Limitation Act to meet the ends of justice. The Legislature identified sections 4 and 12 of the Limitation Act. The Act is a rational, just and reasonable legislation. In calculating the period of limitation by virtue of section 59, provisions of sections 4 and 12 of the Limitation Act have also been made applicable. It is submitted that the provisions of sections 55, 59 and 60 of the Act of 1959 are a composite and complete code in itself, applicable to forums which are not courts. Insofar as the High Court is concerned as it is a civil court, the provisions of the Limitation Act would be applicable. Once there is jurisdiction it is open to the court to condone delay by exercising its jurisdiction provided sufficient cause is made out. Reliance is placed on various judgments, which we shall advert to in the course of our discussion. The basic question to be answered, considering that the High Court is a civil court, is whether the provisions of sections 4 to 24 of the Limitation Act would apply, in spite of specific applicability of only the provisions of sections 4 and 12 of the Limitation Act, to an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me, the object is to reject stale claims and in fiscal matters to avoid delays in disposal of matters so that inflow of revenue is not affected. In computing the period laid down in sections 55, 57 and 61, the provisions of sections 4 and 12 of the Limitation Act, 1963 shall, so far as applicable be applied. Therefore, though section 5 of the Limitation Act has not been expressly excluded, yet in computing the period under section 61, only sections 4 and 12 as far as may be are made applicable. Considering the language of section 29(2) of the Limitation Act as only sections 4 and 12 are expressly made applicable, the inference flows that the other provisions are excluded. We may now consider some of the judgments cited for the purpose of answering the proposition. In Bansilal Gulabchand v. Commissioner of Income-tax, Bombay (Mofussil) [1948] 16 ITR 251 (Bom), a learned Bench of this court presided over by Chagla, C.J. was considering the issue whether an application by the assessee before the Appellate Tribunal under section 66(3) of the Incometax Act to condone the delay in filing an application was maintainable. This court held that the High Court had no power to condone the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable. In Hukumdev Narain Yadav v. Lalit Narain Mishra reported in [1974] 2 SCC 133, the issue before the Supreme Court was whether the provisions of sections 4 to 24 of the Limitation Act were applicable to election petitions, considering section 29(2) of the Limitation Act. The election petition has to be filed in the High Court. Considering the scheme of the Act and various earlier judgments, the court noted, that it would depend upon the terms of section 29(2) of the Limitation Act. The court observed that under this sub-section where a special or local law provides for any suit, appeal or application a period different from the period prescribed therefor by the Schedule, the provisions specified therein will apply only in so far as and to the extent to which they are expressly excluded by such special or local law. Under section 29(2) of the Limitation Act, 1908 as amended in 1922, only section 4, sections 9 to 18 and section 22 of that Act applied ordinarily unless excluded by a special or local law. The court then noted the amendment made in the Act of 1963 to section 29(2) whereby the amended section incorporates two changes, viz., (i) a uniform rule-making it applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation Act would be applicable to the proceedings under order 21 of the Code of Civil Procedure, 1908. The court observed as under: "It is also trite that the civil court in the absence of any express power cannot condone the delay. For the purpose of condonation of delay in the absence of applicability of the provisions of section 5 of the Limitation Act, the court cannot invoke its inherent power." Then the court observed as under: "20. The principles underlying the provisions prescribing limitation are based on public policy aiming at justice, the principles of repose and peace are intended to induce claimants to be prompt in claiming relief. 21.. Hardship or injustice may be a relevant consideration in applying the principles of interpretation of the statute, but cannot be a ground for extending the period of limitation." In Fairgrowth Investments Ltd. v. Custodian reported in [2004] 11 SCC 472, the Supreme Court, while considering the provisions of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 and considering section 29(2); whether the provisions of sections 4 to 24 of the Limitation Act would apply. The powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to subsection (3). In our opinion, this phrase would amount to an express exclusion within the meaning of section 29(2) of the Limitation Act, and would therefore bar the application of section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result." Is the Tribunal constituted under the Act a court for the purposes of applicability of the provisions of the Limitation Act? This issue, in our opinion, stands concluded by the judgment of this court in so far as the Act is concerned in Mehta Construction Company v. State of Maharashtra [1981] 48 STC 398 (Bom) which followed the judgment of the Supreme Court in Nityanand M. Joshi AIR 1970 SC 209. In Commissioner of Sales Tax, U.P., Lucknow v. Parson Tools and Plants, Kanpur reported in [1975] 35 STC 413 (SC), the issue being considered was whether section 14 of the Limitation Act would apply i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Act, except to the extent and in the truncated form embodied in sub-section (3B) of section 10 of the Sales Tax Act. The court then proceeded to observe as under: "Delay in disposal of revenue matters adversely affects the steady inflow of revenues and the financial stability of the State. Section 10 is therefore designed to ensure speedy and final determination of fiscal matters within a reasonably certain time schedule." The Bench then enunciated thus: "Thus the principle that emerges is that if the Legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only up to a specified time-limit and no further, then the Tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time-limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of section 14(2) of the Limitation Act." On a conspectus of the decisions earlier referred to and their rati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter to the High Court within 90 days of the application. Section 59 insofar as sections 55, 57 and 61 are concerned has made applicable only the provisions of sections 4 and 12 of the Limitation Act, 1963 and not the other provisions. The Tribunal, therefore, while sending a statement of case can only consider provisions of sections 4 and 12 and not other provisions of the Limitation Act. Section 59 does not limit the application of sections 4 and 12 of the Limitation Act only to the Tribunal whilst making a reference but to the entire provision, including an application to the High Court. In other words, under the proviso, both the Commissioner and the person can move the High Court within 90 days as set out therein. Could it be the intention of the Legislature that while conferring power on the Tribunal in referring the statement of case to the High Court, it did not choose to limit the power of the High Court, being a civil court, to condone delay in a case where the application for reference is made to it beyond the period prescribed? In our opinion, this would not be a proper construction of section 59. Once the Act has specifically made applicable only the provision of secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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