9911796707
TMI Blog2017 (1) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 1998-1999, 1999-2000, 2000-2001 and 2001-2002 reflecting the value of sales. Based on the representation made by the appellant, Respondent No. 2/Superintendent of Tax allowed full exemption of sales tax as per Section 8(5) of Central Sales Tax Act, 1956. But, the information given by the appellant turned out to be false and as a result of which Respondent No. 2 passed an order dated 29.06.2004 reducing the exemption granted to the petitioner for the year 19998-99 along with imposing penalty. Similar orders of re-assessment were passed in respect of the other assessment years giving rise to the connected proceedings. Aggrieved by the order dated, 29.06.2004, the appellant preferred appeals before Respondent No. 3/Appellate Authority along with applications for the stay of the demand. By order dated 29.07.2005, Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 Authority, in the manner as may be prescribed, within sixty days from the date of receipt of such order. (2) Where the Appellate Authority is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, it may admit an appeal after the expiry of the said period provided it is presented within a further period of one hundred eighty days" 6. The learned counsel next referred to Section 80 of the VAT Act 80. Appeals to the Appellate Tribunal: (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order,- (a) an order passed by the Appellate Authority under Section 79, and (b) an order passed by an authority not below the rank of Deputy Commissioner of Taxes. (2) omitted. (3) Every appeal under su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 8. For this purpose, the learned counsel relied upon Section 29(2) of the Limitation Act, 1963 Section 29(2) of the Limitation Act, 1963 reads as under: "29(2). Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law." which makes provisions contained in Sections 4 to 24 (inclusive) of the Limitation Act, 1963 appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld 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 Limitation Act arose in relation to revision petition that can be preferred under Section 19 of the M.P. Madhyastham Adhikaran Adhiniyam, 1983 (as it stood prior to its amendment in 2005). The Court held that since unamended Section 19 did not contain any express rider on power of the High Court to entertain applications for revision after expiry of prescribed limitation thereunder, provisions of Limitation Act, 1963 would become applicable vide Section 29(2) thereof. It further held that as the High Court was conferred with suo moto power under Section 19 of Adhiniyam, 1983 to call for record of an award at any time, there was no legislative intent to exclude the applicability of Section 5 of the Limitation Act, 1963. 11. Mr. Nalin Kohli, learned senior counsel appearing for the respondents, on the other hand, submitted that the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 authority to condone the delay for a further period of 90 days. However, when it came to making reference to the High Court under Section 35-G of the Act, the provision only prescribed the limitation period of 180 days with no further clause empowering the High Court to condone the delay beyond the said period of 180 days. It was, thus, in almost similar circumstances, the judgment was rendered by this Court. The categorical opinion of the Court was that in the absence of any such power, the High Court did not have power to condone the delay. In that case also, provisions of Section 29(2) of the Limitation Act, 1963 were pressed into service. But this argument was rejected in the following manner: 30. In the earlier part of our order, we have adverted to Chapter VI-A of the Act which provides for appeals and revisions to various authoriti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision." 14. In the process, the Court also explained the expression 'expressly excluded' appearing in Section 29(2) of the Limitation Act, 1963 in the following manner: "34. Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted, what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to the High Court. 35. It was contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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 to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation." 17. Thus, the approach which is to be adopted by the Court in such cases is to examine the provisions of special law to arrive at a conclusion as to whether there was legislative intent to exclude the operation of Limitation Act. In the instant case, we find that Section 84 of the VAT Act made only Sections 4 and 12 of the Limitation Act applicable to the proceedings under the VAT Act. The apparent legislative intent, which can be clearly evinced, is to exclude other provisions, including Section 5 of the Limitation Act. Section 29(2) stipulates that in the absence of any express provision in a special law, provisions of Sections 4 to 24 of the Limitation Act would apply. If the intent ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
