9911796707
TMI Blog2010 (6) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... ed December 24, 2009, the revision petitions filed by the petitioner challenging the appellate orders filed under section 36(2) of the AGST Act were rejected. Heard Dr. A. K Saraf, learned senior counsel assisted by Ms. N. Hawelia and Ms. L. Gope, advocates appearing for the petitioners. Also heard Mr. D. Saikia, learned standing counsel appearing for the respondents. All these cases having involved similar questions of fact and law in respect of different assessment orders passed by the assessing authority and appellate and revisional orders passed by the respective authorities, and as prayed for by the learned counsel for the appearing parties, are heard analogously and are being disposed of by this common judgment. The common case of the petitioner, inter alia, is that the petitioner was managing and running the Tonganagaon Tea Estate deriving their rights on the basis of a registered deed of lease executed on December 7, 1976 leasing out the tea estate by the owners for a period of 51 years which was further renewed for another period of 41 years. It is alleged that due to the reasons beyond the control of the petitioner the financial condition of the tea estate gone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dingly three separate applications were filed praying for condoning the delay, along with the appeals. The hearing of the condonation petition was fixed on July 20, 2001 but it was adjourned till August 23, 2001 on the prayer of the petitioner, on which date also on the prayer for adjournment made by the petitioner time was extended. Though further time was granted to the petitioner, they did not turn up and accordingly a fresh notice dated January 12, 2002 was issued by the appellate authority to the petitioner to show cause as to why the appeals should not be rejected for their non-appearance at the hearings fixing February 4, 2002. On that date also the petitioner did not turn up and another notice was issued to them fixing April 4, 2003. The notice having returned un-served, another notice dated May 12, 2003 fixing June 4, 2003 was issued. But in spite of service of the notice, the petitioner did not appear and prayed for further adjournment by sending a letter. This time also time was granted as last opportunity fixing October 21, 2003 but this time also the petitioner did not turn up. Accordingly, the condonation petition was dismissed and consequently the connected appeals w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that the grounds for delay in filing the appeals and the revision petitions have been sufficiently explained justifying condonation of delay as prayed for. Dr. Saraf further argued that the petitioner has got a very strong case on merit and, and in the event delay is not condoned and the matter is not disposed of on merit, grave injustice would be caused to the petitioner. Mr. D. Saikia, learned counsel for the respondents however, referring to the various eventful dates as reflected from the statement of the petitioner as well as the condonation petition and other documents submits that the order passed in title suit No. 46/2000 clearly discloses that the petitioner was in fact in possession of the garden all through out and although a third party was sought to be inducted by virtue of an agreement the same did not materialize. That apart, the order passed by the appellate authority clearly discloses the enormity of negligence of the petitioner in pursuing the appeals. Even the appellate court, though not required under the law to provide subsequent opportunities by issuing notices to the petitioner for their default to appear, such opportunities were given on various occasion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner considers that any order passed therein by any officer is "erroneous in so far it is pre-judicial to the interest of the Revenue," he may revise the order. Proviso to section 36(1) mandates that no such suo motu revisional power is to be exercised after expiry of eight years from the end of the financial year in which the order sought to be revised was passed. Sub-section (2) of section 36 provides that the Commissioner may on his own motion or in an application made by the dealer or any aggrieved person revise an order passed by a person appointed by the Commissioner under sub-section (1) of section 3, not being an order to which sub-section (1) applies and not being an order against which an appeal under section 33 has been filed or an order in respect of which time allowed for appeal under section 33 has not expired. Proviso to section 36(2) mandates that the Commissioner shall not revise any order under the sub-section after expiry of 90 days from the end of the financial year in which the order is made, providing further that where an application is made within the aforesaid period of 90 days an order in the application may be made at any time. Section 36 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revise any such order after expiry of ninety days. The aforesaid provisions contained in sub-section (2) of section 36 would amount to "express exclusion" within the meaning of section 29(2) of the Limitation Act and consequently the provision of section 5 of the Limitation Act would be excluded. An other interpretation of proviso to sub-section (2) of section 36 making section 5 of the Limitation Act applicable would make the legislative mandate, as indicated above, otiose. The apex court in the case of Union of India v. Popular Construction Co. [2001] 8 SCC 470 had the occasion to deal with such a situation in a case arising out of the Arbitration and Conciliation Act, 1996. In Union of India v. Popular Construction Co. reported in [2001] 8 SCC 470 the apex court held at paras 12 and 13 as follows: "12. 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 sub-section (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 furt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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