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TMI Blog2017 (1) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... AY MANOHAR SAPRE JJ. Mr. Arunabh Chowdhury, Adv., Mr. Anupam Lal Das, Adv., Mr. Karma Dorjee, Adv., Mr. Vaibhav Tomar, Adv., Ms. Shruti Choudhry, Adv. and Mr. Anirudh Singh, Adv. for the Appellants. Mr. Nalin Kohli, Adv., Mr. Ankit Roy, Adv., Ms. Vishakha Ahuja, Adv. and Mr. Shuvodeep Roy, Adv. for the Respondents. JUDGMENT A.K. SIKRI, J. Leave granted. 2. The question of law which has fallen for determination in these appeals is as to whether provisions of Section 5 of the Limitation Act, 1963 are applicable in respect of revision petition filed in the High Court under Section 81 of the Assam Value Added Tax Act, 2003 (hereinafter referred to as the 'VAT Act'). 3. In order to decide this question, which is a pure question of law, it is not necessary to state the facts in greater detail. The seminal facts which require reproduction are mentioned below: The appellant was running a business of purchasing tea and is a registered dealer under the Assam General Sales Tax Act, 1993 as well as the VAT Act and the Central Sales Tax Act, 1956. Based on the sales of his business, the appellant had submitted the declaration in Form C for the years 1998 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicability of Limitation Act, 1963 to such proceedings was faulty inasmuch as the High Court did not take note of and discussed other provisions of the VAT Act and also failed to give due weightage to Section 29(2) of the Limitation Act, 1963. In the first instance, he referred to Section 79 of the VAT Act which is a provision relating to appeals to the Appellate Authority. As per Section 79(1) of the VAT Act, appeal against the order of the taxing authority can be filed with the appellate authority within 60 days from the date of receipt of such order of the taxing authority. Sub-section (2) of Section 79 of the VAT Act empowers the appellate authority to entertain the appeal even beyond 60 days, provided it is presented within a further period of 180 days, if the appellate authority is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the stipulated period of 60 days. Relevant portion of Section 79 of the VAT Act reads as under: 79. Appeals to the appellate authority: (1) Any person aggrieved by an order passed under the Act by a taxing authority lower in rank than a Deputy Commissioner of Taxes, may appeal to the Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision was made in Section 81 of the VAT Act. As per Section 81 of the VAT Act, revision can be preferred to the High Court against the order of the Appellate Tribunal within 60 days. However, there is no provision giving specific power to the High Court to condone the delay if the revision is preferred beyond 60 days. As per the learned counsel, the reason for not providing such a provision was that provisions of Limitation Act, 1963 including Section 5 thereof were applicable. 7. Insofar as Section 84 of the VAT Act 4 Section 84 of the VAT Act reads as under: 84. Application of Section 4 and 12 of Limitation Act, 1963 : In computing the period of limitation under this chapter, the provisions of Section 4 and 12 of the Limitation Act, 1963 shall, so far as may be, apply. is concerned, it was submitted that Sections 4 and 12 of the Limitation Act, 1963 were made applicable for specific purpose of computing the period of limitation under the said Chapter and High Court committed a grave error while holding that because of the aforesaid provision only Sections 4 and 12 of the Limitation Act, 1963 were made applicable to the VAT Act thereby excluding other provisions of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is an important departure made by the Limitation Act, 1963 insofar as the provision contained in Section 29, sub-section (2), is concerned. Under the Indian Limitation Act, 1908, clause (b) to sub-section (2) of Section 29 provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the application of Section 5 was in clear and specific terms excluded. But under Section 29(2) of Act, the provisions of Section 5 shall apply in case of special or local law to the extent to which they are not expressly excluded by such special or local law. Since under the Limitation Act, 1963, Section 5 is specifically made applicable by Section 29 (2), it is only if the special or local law expressly excludes the applicability of Section 5 that it would stand displaced. The Court held that there is nothing in Section 417(4), Cr.P.C., which excludes the application of Section 5 of Limitation Act, 1963. 10. Learned counsel for the appellant also referred to the case of State of Madhya Pradesh Anr. v. Anshuman Shukla (2014) 10 SCC 814 . In that case, question of applicability of Section 5 of the Limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond the period prescribed by applying Section 5 of the Limitation Act. Unamended Section 35-H dealt with reference application to the High Court. Under sub-section (1) thereof, such reference application could be preferred within a period of 180 days of the date upon which the aggrieved party is served with notice of an order under Section 35-C of the Central Excise Act. There was no provision to extend the period of limitation for filing the application to the High Court beyond the said period and to condone the delay. Pertinently, under the scheme of the Central Excise Act as well, in case of appeal to the Commissioner under Section 35 of the Act, which should be filed within 60 days, there was a specific provision for condonation of delay upto 30 days if sufficient cause is shown. Likewise, appeal to the Appellate Tribunal could be filed within 90 days under Section 35-B thereof and sub-section (5) of Section 35-B gave power to the Appellate Tribunal to condone the delay irrespective of the number of days, if sufficient cause is shown. Further, Section 35-EE provided 90 days time for filing revision by the Central Government and proviso thereto empowers the revisional authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days. 33. Even otherwise, for filing an appeal to the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islature to set right the deficiency, if it intends to give power to the High Court to condone the delay in filing revision petition under Section 81 of the VAT Act. 16. Argument predicated on 'no express exclusion' loses its force having regard to the principle of law enshrined in Hukumdev Narain Yadav. Therein, the Court made following observations while examining whether the Limitation Act would be applicable to the provisions of the Representation of the People Act or not: 17. but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... described therein has been equally made applicable to the assessee as well as the revenue lends ample credence to such a conclusion. We, therefore, unhesitantly hold that the application of Section 5 of the Limitation Act, 1963 to a proceeding under Section 81(1) of the VAT Act stands excluded by necessary implication, by virtue of the language employed in section 84. 19. The High Court has rightly pointed out the well settled principle of law that the court cannot interpret the statute the way they have developed the common law which in a constitutional sense means judicially developed equity'. In abrogating or modifying a rule of the common law the court exercises the same power of creation that built up the common law through its existence by the judges of the past. The court can exercise no such power in respect of statue, therefore, in the task of interpreting and applying a statue, Judges have to be conscious that in the end the statue is the master not the servant of the judgment and no judge has a choice between implementing it and disobeying it. What, therefore, follows is that the court cannot interpret the law in such a manner so as to read into the Act an inh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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