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TMI Blog2008 (10) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... court in Foremost Industries India Limited v. Lt. Governor [W.P. (C). No. 221 of 2002, decided on 18th July, 2005 Delhi High Court], held that the revisional authority under the Act does not have the power to condone delay in filing revision petitions and section 5 of the Limitation Act has no application to such revision petitions. Aggrieved by the order of the Additional Commissioner, the petitioner has preferred these writ petitions. The petitions were listed before a Division Bench of this court which was of the opinion that there are conflicting views by this court with regard to the applicability of section 5 of the Limitation Act and consequently the matter deserved to be decided by a larger Bench. The two Division Bench decisions of this court, which according to the learned judges, contain conflicting views, were Foremost Industries India Limited v. Lt. Governor [W.P. (C). No. 221 of 2002, decided on 18th July, 2005 Delhi High Court] and Walia Electronics v. Government of NCT of Delhi [2004] 111 DLT 778. The learned judges therefore referred the following question to a larger Bench: Whether section 5 of the Limitation Act can be invoked for the condonation of delay in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. We shall, therefore, confine our discussion to the question referred to us, i.e., whether section 5 of the Limitation Act applies to a revision petition under section 47 of the Delhi Sales Tax Act. In order to answer the issue, we may refer to some of the provisions of the Delhi Sales Tax Act which read as follows: 47. Revision of other orders. (1) In the case of any order other than an order referred to in section 44 or to which section 46 applies, passed by a person appointed under sub-section (2) of section 9 to assist him, the Commissioner may, either on his own motion or on an application filed in accordance with such rules as may be prescribed, call for the record of any proceeding under this Act in which any such order has been passed and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such orders thereon, not being an order prejudicial to the dealer, as he thinks fit: Provided that the Commissioner shall not revise any order under this sub-section, (a) where an appeal against the order is pending before the appellate authority under section 43; or (b) where, if such appeal lies, the tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal authority would be clothed with the power under section 5 of the Limitation Act. Section 47 of the Act, it is submitted, does not lay down any restriction on the revisional authority not to extend the time for filing a revision beyond the prescribed period, if there was sufficient cause. A revision under section 47 has to be filed in accordance with the Delhi Sales Tax Rules, 1975 (for short, the Rules ) and as per rule 39, the provisions of rules 36 to 38 relating to appeals have been applied mutatis mutandis to revisions under section 47. Therefore when a revision is filed after the expiry of the prescribed period under section 47(3), and is supported by an application, duly verified, setting forth the facts, showing sufficient cause for not preferring the revision within the said period, then the officer adjudicating the revision has to decide that application and, thus, the principles of section 5 of the Limitation Act have been incorporated in the Scheme of the Act and the Rules. To hold otherwise will have the effect of rendering the provisions of rule 36(4) redundant which could never be the intention of the Legislature when it consciously applied the said prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 14 of the Limitation Act and hence section 14 does not apply. The Scheme of the Act would disclose that the Legislature has deliberately excluded the application of the principles underlying sections 5 and 14 of the Limitation Act. Delay in disposal of revenue matters adversely affect the steady inflow of revenues and the financial status of the State. Section 10 was therefore designed to ensure the speedy and final determination of fiscal matters within a reasonably certain time schedule. The court quoted with approval the following observations in Smt. Ujjam Bai v. State of U.P. [1963] 1 SCR 778: The taxing authorities are instrumentalities of the State. They are not a part of the Legislature; nor are they part of the judiciary. Their functions are the assessment and collection of taxes, and in the process of assessing taxes, they follow a pattern of action which is considered judicial. They are not thereby converted into courts of civil judicature. They still remain the instrumentalities of the State and are within the definition of 'State' in article 12. While considering provisions of the U.P. Sales Tax Act the court held that they are merely adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the meaning of the Limitation Act, and, therefore, an application under section 33C(2) cannot be held to be barred under article 137 insofar as the claim was for a period beyond three years. In Commissioner of Income-tax v. Western India Engineering Co. Ltd. [1970] 77 ITR 165 the Division Bench of the Gujarat High Court has held that the Appellate Tribunal under section 66(1) of the Income-tax Act, 1961 is not a court but is merely a Tribunal exercising the judicial power of the State. As the provisions of the Limitation Act are not intended to be made applicable to proceedings before authorities other than courts governed by the Code of Civil Procedure or the Code of Criminal Procedure, section 5 of the Limitation Act, will not apply to applications made to the Appellate Tribunal and, therefore, the Tribunal has no power to condone delay in filing reference applications under section 66(1) of the Income-tax Act, 1961. In Commissioner of Agricultural Income-tax v. Thalayar Rubber Industries Ltd. [1981] 131 ITR 162 a Full Bench of the Kerala High Court has held that section 69 of the Kerala Agricultural Income-tax Act, 1950, indicates that provisions of sections 4 to 24 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt was whether the provisions of sections 4 to 24 of the Limitation Act would be applicable to election petitions, considering section 29(2) of the Limitation Act. The court observed that under section 29(2) 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 insofar as and to the extent to which they are expressly not 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 namely, (i) a uniform rule making it applicable to all applications except those mentioned therein, and (ii) to all special and local enactments unless excluded by any of them. After considering various judgments, the court held that the provisions of section 5 of the Limitation Act do not govern the filing of election petitions or their trial, though in an appellate forum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proviso to section 34 merely provided for a period within which the court could exercise its discretion, that would not have been sufficient to exclude sections 4 to 24 of the Limitation Act because mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of section 5. The court then observed as under: (at page 474 of [2001] 8 SCC) As far as the language of section 34 of the 1996 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. In L.S. Synthetics Ltd. v. Fairgrowth Financial Services Ltd. AIR 2005 SC 1209 the court held that the provisions of the Limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission made on behalf of the petitioner based on rule 36(4) of the Delhi Sales Tax Rules. Rule 36(4) provides that for filing an appeal, which is made after the expiry of the period specified in subsection (3) of section 43, it shall be accompanied by a petition setting out the facts showing sufficient cause for not preferring the appeal within the said period. Section 43(1) of the Act confers power on the appellate authority to condone delay in case sufficient cause is shown and rule 36(4) merely prescribes the procedure for filing an application for condonation of delay in preferring the appeal. By virtue of rule 39 of the Rules the provisions of rules 36 to 38 have been made applicable mutatis mutandis for revisions under section 47 of the Act. Rule 36(4) will have no application in respect of proceedings under section 47 in as much as revisional authority is not conferred any power to condone delay. By enacting section 62(2) the Legislature has clearly indicated that the provisions of the Limitation Act except sections 4 and 12 are excluded insofar as proceedings under section 47 are concerned. Rule 36(4) cannot, by any stretch of imagination, be said to be conferring power for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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