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TMI Blog2014 (12) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (1) substantively and the proviso - this period or stipulation of time or provision of limitation binds the parties – the contention cannot be accepted because it is not the word "only" referred by the Division Bench but a conjoint and combined reading of the legal provisions referred enables to hold that application of section 5 of the Limitation Ac, 1963 is excluded. The legislative intent to exclude the applicability of section 5 of the Limitation Act, 1963 has to be found out with reference to the nature of the power which is invoked and which is requested to be exercised, whether a party or person has absolute right to invoke it and equally whether the Court can exercise it and all this has to be examined with reference to the provisions of the special law - It is not that an express exclusion must be found in the section which is being construed or interpreted namely, section 61 of the Bombay Sales Tax Act, 1959 - It is possible to arrive at the conclusion and which has been arrived by the Division Bench by a combined or conjoint reading of the legal provisions as ultimately the statute must be read as a whole - Its provisions have to be read together and harmoniously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court. However, the endeavour of the Revenue is to point out that this judgment cannot be said to be laying down the correct law. Mr. Sonpal has handed over to us a compilation containing the judgments and particularly in the case of Vasanji Ghela & Co. vs. The State of Maharashtra and Another reported in 1968 (Vol.XXII) Sales Tax Cases 104. He has also brought to our notice, the order passed by the Hon'ble Supreme Court in the case of Commissioner of Sales Tax, Maharashtra vs. N.H. Polymers, Solapur in Petition(s) for Special Leave to Appeal (Civil) CC No.6050 of 2009. It is submitted that the Hon'ble Supreme Court had dismissed the Revenue's Appeal challenging the judgment of this Court in the case of Commissioner of Sales Tax, Maharashtra State, Mumbai vs. N.H. Polymers on the ground of delay. It is therefore, open for us to take a different view. Mr. Sonpal also brought to our notice a judgment of this Court and delivered by a Division Bench in the case of Mehta Construction Company vs. State of Maharashtra & Another, reported in 1981 (Vol.48) Sales Tax Cases 398. Lastly, reliance is placed upon a judgment of the Hon'ble Supreme Court delivered recently in the case of Das ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... canvassed or the Court's attention is being invited to some other section or provision particularly in the Limitation Act, 1963. In these circumstances, both argue that these Motions be dismissed. 9 With the assistance of the Counsel appearing for both sides, we have perused Notices of Motion, the Affidavits-in-support and Reply, the statutory provisions and the decisions brought to our notice. 10 At the relevant time, the Bombay Sales Tax Act, 1959 had a provision and which enabled the forwarding of a statement of case to this Court. That is to seek an opinion or answer on any question of law arising out of the order and passed by the authorities named in section 61. Section 61 of the Act reads as under: S.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 or any sum or which affects the recovery from any person of any amount under section 39, that person, the Additional Commissioner of Sales Tax having jurisdiction over the whole of the State or the Commissioner, may by applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be deemed to be the copy of the judgment of the High Court delivered to the Tribunal under the seal of the court and the signature of the Registrar. (5) Where a reference is made to the High Court under this section, the costs including the disposal of the fee referred to in sub-section (1), shall be in the discretion of the Court. (6) The payment of the amount of the tax, penalty, interest or sum forfeited if any, due in accordance with the order of the Tribunal in respect of which an application has been made under sub-section (1) shall not be stayed pending the disposal of such application or any reference made in consequence thereof; but if such amount is reduced as the result of such reference, the excess tax, penalty, interest or sum forfeited paid shall be refunded in accordance with the provisions of section 43." 11. A bare perusal thereof would indicate that the Application to forward a question or referring it for opinion and answer by this Court in the first instance can be made by a written Application to the Tribunal. If the Tribunal agrees with the Applicant then, it shall draw up this statement of case and refer it to the High Court. However, that power o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sales Tax, Maharashtra State. The proceedings arose out of a question determined by the Commissioner of Sales Tax by his order dated 31st January, 1998. He held that the items are covered by Entry C-II-152, the residual entry liable to sales tax at 13%. N.H. Polymers, the Assessee in that case preferred an appeal being Appeal no.36 of 1998 before the Maharashtra Sales Tax Tribunal, Mumbai. By an order dated 31st August, 2002, the Tribunal allowed the Appeal and held that the items enumerated in para No.3 of the Application are covered under entry-C-I and thus liable to sales tax at four per cent. The Commissioner of Sales Tax, Maharashtra State, Mumbai applied by Reference Application No.122 of 2002 to the Tribunal and requested to frame questions of law and refer them to this Court. By order passed on 15th June, 2005, the Tribunal rejected the Reference Application No.122 of 2002. Aggrieved by this order of the Tribunal, the Commissioner of Sales Tax, Maharashtra State approached this Court by filing an Application, namely, a Notice of Motion seeking condonation of delay together with the Reference Application because in his submission the Sales Tax Application was filed beyond pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation 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 limitation only on an appellate authority while admitting an appeal under Section 55. Considering the language of section 60 and the object behind enacting it, an inference can be drawn that Section 60 was enacted to exclude the application of Section 5 of the Limitation Act. By necessary implication, therefore, it will also impliedly exclude the application of section 5 of the Limitation Act to an application for reference under the Act submitted either to the Tribunal or the court under the proviso to section 61. Considering the specific provisions of the special law, the ratio of the Supreme Court judgment in the case of Union of India v. Popular Construction Co. (2001) 8 SCC 470 and the decision in the case of Commissioner of Sales Tax, U.P. v. Parson Tools and Plants (1975) 35 STC 413 (SC) is squarely applicable." 17. The Division Bench held that in computing the period laid down in sections 55, 57 and 61, the provisions of section 4 and 12 of the Limitation Act, 1963 shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed in appeal under this section, shall subject to the provisions of section 57, 61 and 62 be final. (4) Subject to the provisions of section 60, no appeal shall be entertained unless it is filed within sixty days from the date of the communication of the order appealed against. (5) The Appellate Authority or the Tribunal, as the case may be, may, while admitting the appeal, pending the disposal of the appeal, stay the order appealed against, subject to such conditions or restrictions as may be deemed necessary including a direction for depositing of a part or whole of the disputed amount by the appellant. (6) All second appeals and applications filed before the coming into force of section 14 of the Maharashtra Tax Laws (Levy and Amendment) Act, 2001, (Mah. 22 of 2001), in so far as the said appeals are filed against any order passed in first appeal directing payment to be made of any sum with or without security for admission of the first appeal, shall abate: Provided that, such abating of the second appeal shall not affect the stay order, if any, granted by the Appellate Authority or the Tribunal against the original order, against which first appeal has been filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what is material for our purpose is not section 58 but sections 59 and 60. These sections read as under: "S. 58. Court fees on appeal and certain other applications.- Notwithstanding anything contained in the Bombay Court-fees Act, 1959 (Bom.XXXVI of 1959), an appeal preferred under section 55 shall bear a courtfee stamp of such value not exceeding one thousand rupees, as may be prescribed, and any other application, not otherwise provided by this Act, when presented to a prescribed authority for a prescribed purpose or when presented to the Tribunal shall bear a court-fee stamp of such value not exceeding one hundred rupees, as may be prescribed." "S.59. Application of sections 4 and 12 of Limitation Act.- In computing the period laid down under section 55, 57 and 61 the provisions of sections 4 and 12 of the Limitation Act, 1963, shall, so far as may be, apply. S.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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercised beyond the statutory limit or the limitation prescribed by law. In other words, the delay in filing a Revision Petition invoking section 19 of this Act cannot be condoned after the period specified therein and by taking recourse to section 5 of the Limitation Act, 1963. The observations, conclusions and findings of the Hon'ble Supreme Court are instructive. In para 19 of this judgment the Supreme Court framed the question no.1 and in answering the same referred to not only the Madhya Pradesh Act but the Limitation Act, 1963 and held that it is a general legislation on the law of limitation. It expressly referred to section 5 and 29 thereof in paras 25 and 26. Thereafter, the judgments brought to its notice by parties have been referred in paras 27, 28 and 29. Some of the judgments that the Hon'ble Supreme Court referred are also cited in the Division Bench order in Commissioner of Sales Tax, Maharashtra State, Mumbai vs. N.H. Polymers. Upon referring to these judgments of the Hon'ble Supreme Court the Division Bench of this Court in Commissioner of Sales Tax, Maharashtra State, Mumbai vs. N.H. Polymers (supra) held as under: "27. The court observed that the three s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the word "only" in section 59 of the Bombay Sales Tax Act, 1959. However, as the Hon'ble Supreme Court has clarified it is not just the aspect of express exclusion but the nature of the proceedings which are relevant. The Hon'ble Supreme Court has therefore, examined the matter and with the reference to all the previous judgments. In the event, an Application lies to a Court then, the nature of the enquiry should be as held by the Hon'ble Supreme Court. In the earlier paragraphs which we have reproduced above, the Division Bench of this Court has referred to other decisions and rendered by the Hon'ble Supreme Court in Commissioner of Sales Tax, Uttar Pradesh, Lucknow vs. Parsaon Tools And Plants, Kanpur reported in (1975) (VOL.35) STC 413 and Shrimati Ujjambai vs. State of Uttar Pradesh & Another reported in (1963) 1 SCR 778. Eventually the legislative intent to expressly exclude the applicability of section 5 of the Limitation Act, 1963, which is relevant. In the present case, the conclusion of the Division Bench is based on a conjoint reading of the above referred provisions of the Bombay Sales Act, 1959. The conjoint reading reveals the legislative intent. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferring the Appeal within such period. In comparison in section 59, the legislature clarifies that for computation of the period laid down under sections 55, 57 and 61, the provisions of sections 4 and 12 of the Limitation Act, 1963, shall so far as may be apply. Reading these two provisions together reveals the legislative intent. For the purposes of computation of the period of limitation laid down by sections 55, 57 and 61 which are powers of Appeal, Revision and of referring of a statement of case to the High Court, the provisions of sections 4 and 12 of the Limitation Act, 1963 can be applied but that also so far as may be. Sections 4 and 12 of the Limitation Act, 1963 read as under: "4. Expiry of prescribed period when Court is closed.- Where the prescribed period for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the date when the Court re-opens. Explanation.- A Court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day." "12 Exclusion of time in legal proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Order XXI of CPC any Appeal or Application is capable of being admitted after the prescribed period, if the Appellant or the Applicant satisfies the Court that he had sufficient cause for not preferring the Appeal or making the Application within such period. It is this provision which is expressly included in section 60 of the Bombay Sales Tax Act, 1959. It has been made applicable to the exercise of the Appellate power under that Act. Sections 4 and 12 of the Limitation Act, 1963 only enable an Applicant to institute or prefer or make any suit, appeal or application after reopening of the Court and in the event, it is closed on the expiry of the last day of filing the proceedings, section 12 only enables exclusion of time. These are therefore provisions enabling computation of the period of limitation by excluding from it certain days. The date on which the judgment is pronounced and the time requisite for obtaining the copy thereof and lastly Application being made for leave to Appeal from a decree for order, the time requisite for obtaining the copy of the judgment shall also be excluded. Such a provision is distinct from section 5 of the Limitation Act, 1963 and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legislative intent was to exclude the operation of the Limitation Act." 34. The legislative intent to exclude the applicability of section 5 of the Limitation Act, 1963 has to be found out with reference to the nature of the power which is invoked and which is requested to be exercised, whether a party or person has absolute right to invoke it and equally whether the Court can exercise it and all this has to be examined with reference to the provisions of the special law. It is not that an express exclusion must be found in the section which is being construed or interpreted namely, section 61 of the Bombay Sales Tax Act, 1959. It is possible to arrive at the conclusion and which has been arrived by the Division Bench by a combined or conjoint reading of the legal provisions as ultimately the statute must be read as a whole. Its provisions have to be read together and harmoniously so as to discern the legislative intent. If a combined reading enables us to reach the same conclusion as reached by the Division Bench then, we do not find any merit in the contentions of Mr. Sonpal. 35. Equally we do not find merit in other contention that the Division Bench has omitted from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng precedent: "17 We have carefully read this order and we do not see how Mr.Nair urges before us that all shades and aspects of the controversy have not been noted and duly considered. His complaint is that the counsel for the State at the relevant time did not bring to the notice of this Court several vital aspects of the matter nor did he advance complete submissions and arguments. 18 The attempt of the Revenue in this case is to get over this order by pointing out that it is not binding on us as several aspects were not noted and duly considered in it nor this Court had the benefit of complete arguments and submissions. 19 We are afraid that the Revenue persists in such attempts and as noted repeatedly. The Honourable Supreme Court in the case reported in AIR 2005 SC 752 (Central Board of Dawoodi Bohra Community v/s State of Maharashtra) reiterated the principle of binding precedents in the following terms:" "7. …... Per incuriam means of decision rendered by ignorance of a previous binding decision such as a decision of its own or of a Court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of ..... 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