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TMI Blog2018 (8) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2018. : Mr. Ashok Sharma, Advocate General with M/s. Ranjan Sharma, Ritta Goswami and Adarsh Sharma, Additional Advocate Generals for the respondent. Sanjay Karol, Acting Chief Justice:- Moot issue involved in all these petitions is as to whether this Court can entertain a Revision Petition under Section 48(1) of the Himachal Pradesh Value Added Tax Act, 2005, which is filed beyond the period of limitation so prescribed in the Statute. In other words, what this Court has to decide is as to can it entertain an application under Section 5 of the Limitation Act for condonation of delay in filing a Revision Petition under Section 48 (1) of the Himachal Pradesh Value Added Tax Act, 2005. 2. It is not in dispute that all these Revision Petitions are time barred. In fact, by way of application No. CMP(M) No 1371 of 2017 so filed for condonation of delay in Revision Petition titled State of Himachal Pradesh and others versus Tritronics India Pvt. Ltd., delay is of more than two years and nine months. Similar is the case in other petitions also, wherein also prayer for condonation of delay in filing the said Revision Petitions is there. 3. We have heard learned Counsel for the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; (5) No order shall be passed under this section which adversely affects any person unless such person has been given a reasonable opportunity of being heard." (Emphasis supplied) 6. The language of the Statute is unambiguous and categorical that a person aggrieved by an order made by a Tribunal either under Section 45(2) or Section 46(3) of the 2005 Act may within a period of 90 days of the communication of such order, apply to the High Court for revision of such order, if it involves a question of law arising out of erroneous decision of law or failure to decide a question of law. 7. There is no provision in the Statute from which it could be inferred that a time barred Revision Petition can be preferred before the High Court and if the High Court is so satisfied, it can condone the delay in filing the same. 8. In Anshuman Shukla (supra), Hon'ble Supreme Court (three Judges Bench) was dealing with the applicability of Section 5 of the Limitation Act vis-a-vis Section 19 of the same, relevant provision of which reads as under:- "19. High Court's power of revision -(1)- The High Court may suo motu at any time or on an application made to it within three months of the awar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed of the decision of the Appellate Tribunal, file a revision to the High Court, and the dealer or other person so appealing shall serve a copy of the notice of revision on the respondents to the proceedings." Relevant extract of Section 48 of Act, reads as under:- "48. Revision to High Court. -(1) Any person aggrieved by an order made by the tribunal under sub-section (2) of section 45 or under subsection (3) of section 46, may, within 90 days of the 85 communication of such order, apply to the High Court of Himachal Pradesh for revision of such order if it involves any question of law arising out of erroneous decision of law or failure to decide a question of law. (Emphasis supplied) 13. It was while interpreting a statutory provision akin to that contained in Section 48 of the Himachal Pradesh Value Added Tax Act, 2005, that Hon'ble Supreme Court held that the application of Section 5 of the Limitation Act to a proceeding under Section 81(1) of the Assam Value Added Tax Act stood excluded by necessary implication, by virtue of language employed in Section 84. 14. Incidentally, we find that in Assam Value Added Tax Act, Section 84 provided that in computing period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act appears to be not only to shorten the length of the proceedings initiated under the different provisions contained therein, but also to ensure finality of the decision made there under. The fact that the period of limitation 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. The High Court has rightly pointed out the well settled principle of law that: (Patel Bros. Case, SCC OnLine Gau para 19) "19....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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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, we have to see the scheme of the special law here in this case is Central Excise Act . 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 considered view, that 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 whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that except providing a period of 180 days for filing reference application to the High Court, there was no other Clause for condoning the delay if Reference is made beyond the said prescribed period. 20. We also find that in Patel Bothers (supra) wherein while dealing with a Statutory provision which pertained to Value Added Tax Act, as is the case before us also, Hon'ble Supreme Court has referred to Anshuman Shukla's case and yet held that there was no inherent power conferred upon the High Court under the provisions of Assam Value Added Tax Act to condone delay in filing of Revision Petition before it. We also notice that both in Patel Brothers (supra) as also in Hongo India Private Limited (supra), Honble Supreme Court was interpreting applicability of Limitation Act, vis-a-vis Excise/Tax legislation. In fact, in Hongo India Private Limited (supra), Hon'ble Supreme Court has elaborately dealt with scope of Section 29(2) of the Limitation Act vis-a-vis Section of the same. 21. According to us, law so declared by Hon'ble Supreme Court is both applicable and binding as far as its applicability on Section 48 of the Himachal Pradesh Value Added Tax Act, 2005 is concerned because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ss. 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 subjectmatter and scheme of the special law exclude their operation. The provisions of s. 3 of the Limitation Act that a suit instituted, appeal preferred and application made after the prescribed period shall be dismissed are provided for in s. 86 of the Act which gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of ss. 81, 82 or 117. It will be seen that s. 81 is not the only section m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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