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TMI Blog2024 (8) TMI 1387X X X X Extracts X X X X X X X X Extracts X X X X ..... ause is made out, to permit filing of an appeal within a further period of 30 days beyond the statutory provisions of the Limitation Act. It was held that, the affected party cannot invoke Section 5 of the Limitation Act. Though Section 29 (2) requires an express exclusion to be found in the special or local law, the Hon ble Supreme Court, in Union of India v. Popular Construction Co. [ 2001 (10) TMI 1044 - SUPREME COURT] had held that where the language of the legislation, excluded the applicability of the provisions of the Limitation Act, by necessary implication, any benefit under the provisions of the Limitation Act cannot be claimed. In view of this ratio, it is not necessary that there should be an express exclusion of the provisions of section 4 to 24 of the limitation Act. Where a special or local law, by express statement excludes all or any of Sections 4 to 24 of the Limitation Act, they cannot be applied to any proceedings under such special or local law. Where such exclusion is to deduced, by way of necessary implication, each provision would have to be considered separately and exclusion of one provision would not result in exclusion of the other provisions of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of dismissal, the petitioners have approached this court by way of these writ petitions. 3. The orders impugned in the present batch of writ petitions are as follows: W.P. No. Proceedings No. Date of the order W.P. No. 13662/2024 Special Appeal No. GST/KKD/721/ 2023-24 12.02.2024 W.P. No. 13712/2024 Special Appeal No. GST/KKD/722/ 2023-24 12.02.2024 W.P. No. 14803/2024 CTD Order No.DIN3731052440836 31.05.2024 4. Section 107 of the APGST Act reads as follows: 107. (1) Any person aggrieved by any decision or order passed under this Act or the Central Goods and Services Tax Act, 2017 by an adjudicating authority may appeal to such Appellate Authority as may be prescribed within three months from the date on which the said decision or order is communicated to such person. (2) The Chief Commissioner may, on his own motion, or upon request from the Commissioner of Central tax, call for and examine the record of any proceeding in which an adjudicating authority has passed any decision or order under this Act or the Central Goods and Services Tax Act, 2017 for the purpose of satisfying himself as to the legality or propriety of the said decision or order and may, by order, direct any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income Tax (International Taxation)-1, New Delhi vs. Brandix Mauritius Holdings Ltd., Neutral Citation No.2023:DHC?2502-DB in ITA No.163 of 2023 , would contend that there is an implied exclusion of Section 5 of the Limitation Act and as such the appellate authority, under Section 107 (4) of the CGST Act, does not have power to condone the delay of filing of appeals beyond the additional period of one month. Consideration of the Court: 8. Section 29 (2) of the Limitation Act, 1963 reads as follows: 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. 9. Any appeal filed under Section 107 (1) or 107 (2) of the APGST Act would have to be filed either wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law (a) the provisions contained in Section 4, Sections 9 to 18, and Section 22 shall apply only insofar as, and to the, extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply. 13. Section 29 (2) was analyzed, in both the majority and the concurrent judgments to consist of two parts. The first part is said to have ended with the words prescribed therefore in the schedule and the second limb is said to have commenced from and for the purpose of . The difference of opinion arose as to whether the word and should be read to mean that the entire provision should be read as one whole or whether the second limb was independent and controlled the first limb. 14. The Hon ble Supreme Court considered an earlier judgment of a Full Bench of the Allahabad High Court in Sehat Ali Khan vs. Abdul Qavi Khan ILR (1956) 2 ALL 252, wherein the majority view was that the two parts of the sub-section were independent of each other while the dissenting judgment held that both should be read together as an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 5 of the Limitation Act. 19. The question of applicability of Section 29 (2) of the Limitation Act to the provisions of Arbitration and Conciliation Act, 1996, was again considered by the Hon ble Supreme Court in Union of India v. Popular Construction Co. The Hon ble Supreme Court considered the question of whether an application under Section 34 of the Arbitration and Conciliation Act, 1996 challenging an arbitral award, could be filed beyond the period stipulated under Section 34 of the Act. 20. Under Section 34 of the Arbitration Act, an application for setting aside an arbitral award could be filed within three months from the date on which the arbitral award is received by the applicant or the date on which a request under Section 33 of the Arbitration Act has been disposed of by the Arbitral Tribunal. The proviso to Section 34 (3) permitted the applicant to file the application beyond the period of three months. However, such application would have to be filed within a further period of 30 days, if the Court was satisfied that the applicant was prevented by sufficient cause from making the application within the aforesaid period of three months. 21. The Hon ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt after considering various judgments of the Hon ble Supreme Court, including the aforesaid judgments, referred to above, had held that the provisions of Section 45 permitted filing of an appeal within 60 days or such more extended period, as the appellate authority may allow, and had held that Section 45 read with Section 48 of the said Act nowhere expressly or by implication exclude the applicability of the Limitation Act and had held that the provisions of Section 5 of the Limitation Act would be applicable in relation to filing of revisions under the Himachal Pradesh Value Added Tax Act. 24. In the case of Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur and Ors., the Hon ble Supreme Court considered the applicability of Section 29 (2) of the Limitation Act to the provisions of Section 35 of the Central Excise Act. Section 35 of the Central Excise Act provided for an appeal to be filed, before the Commissioner (Appeals), within 60 days from the date of communication, of the decision against which the appeal is being filed. The proviso to Section 35 permitted the Commissioner (Appeals), if he was satisfied that sufficient cause is made out, to permit filing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red. Would exclusion, by necessary implication, of one provision of any of Sections 4 to 24, automatically exclude all the other provisions? This has to be answered in the negative, in view of the judgment of the Hon ble Supreme Court in Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department and Ors. The Hon ble Supreme court, after considering the earlier judgment in Union of India v. Popular Construction Co., excluding the applicability of Section 5 of the Limitation Act, in relation to appeals filed under Section 34 of the Arbitration and Conciliation Act, 1996, had held that the provisions of Section 14 of the Limitation Act are not excluded by any of the provisions of the Arbitration and Conciliation Act, 1996. This different treatment, accorded to different provisions, makes it clear that there has to be independent consideration of the question of exclusion of each provision. 27. Where a special or local law, by express statement excludes all or any of Sections 4 to 24 of the Limitation Act, they cannot be applied to any proceedings under such special or local law. Where such exclusion is to deduced, by way of necessary implication, each provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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