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TMI Blog2004 (12) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... ower to condone the delay, in that event the provision is to be construed to have impliedly excluded the application of the Limitation Act, as contemplated in Section 29(2) of the Limitation Act. 1.2He had also pointed out that the jurisdiction conferred on the High Court under Section 35H is an advisory jurisdiction which is neither appellate nor original. Therefore, High Court does not exercise its jurisdiction as a civil court while dealing with reference under Section 35H. If the High Court is not a civil court, in that event, the provisions of the Limitation Act would not apply unless it is specifically made applicable to it. He had further contended that form the scheme of the provisions incorporated through amendments, as it stands today, does not empower the Court to condone the delay in the absence of conferment of specific power in this regard on the High Court under Section 35H which is a special jurisdiction without the trappings of a Civil Court. 1.3Mr. Dutta had relied on various decisions in support of his contention to which we shall be referring to at appropriate stage. The point opposed : 2.Mr. Banerjee, learned Counsel, on the other hand, appearing on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to which we shall be referring to at appropriate stage. Reply to support the point raised : 4.Mr. Dutta, in his reply, had pointed out that it has been already held by various decisions including one of this Court by a learned Single Judge in which one of us (D.K. Seth, J.) was a party, to contend that when the High Court has no power to grant stay while exercising jurisdiction of reference, how could it assume the jurisdiction to condone the delay under Section 5 of the Limitation Act. According to him, the High Court cannot exercise the jurisdiction of a civil court while dealing with reference since it is denude of the inherent power contemplated under Section 151 of the CPC. In these circumstances, according to him, the application for condonation of delay is not maintainable. Finance Bill 1999 : Statement of reasons and object : Nothing indicated : 5.In order to ascertain the intention of the legislature in the process of amendment of Section 35H through the Finance Act, 1999, we had looked into the Finance Bill, 1999 which does not indicate any reason for such amendment which would lead us to hold that the legislature had intended to circumscribe the limitation to an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 78 of 1995 disposed of by us on 17th September 2004 and Lalit Mohan Thapar v. CWT (Cal.) - GA No. 835 of 2002. AWT No. 3730 of 1998 disposed of on 23rd July 2004, CIT, Kolkata v. Tata Tea Ltd. - ITA No. 233 of 2002 disposed of on 17th June 2004 by us, discussing various decisions of the other High Courts and the Apex Court and relying thereupon, we had held that the High Court cannot exercise inherent jurisdiction while dealing with a reference. But still then it is a Court and can exercise such powers ancillary to the exercise of jurisdiction under reference. 6.1When a forum is selected in an enactment and no procedure is prescribed, especially for the forum, in that event, the forum is supposed to exercise such jurisdiction, which is normally exercised by it. By reason of selection of a forum, the characteristics of the forum cannot be altered or changed; the forum retains its characteristics. If no procedure is prescribed, it is entitled to follow its own procedure or it may prescribe its procedure itself for such purpose. Therefore, such forum will retain its characteristics. It is only the jurisdiction conferred upon it that is detailed and circumscribed and is confined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 29(2), then unless there is something expressly or impliedly in sub-section (1) of Section 35H, the application of Section 29(2) cannot be said to be excluded when it is held to be a Court. 7.1 The answer is to be found out from the four corners of sub-section (1) of Section 35G. At the same time, we may compare similar provisions in the statute dealing with Revenue Laws operating in the Revenue field. 7.2 Section 54 of the Foreign Exchange Regulation Act, 1973 while providing for appeal to the High Court prescribed that an appeal should not be entertained if filed after the expiry of the stipulated date unless the High Court is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the time stipulated. This provision has since been replaced by Section 35 of the Foreign Exchange Management Act, 1999 (FEMA, 1999) repealing the 1973 Act. While providing the time limit for filing the appeal to the High Court in Section 35, it is provided that the High Court if satisfied that the appellant was prevented by sufficient cause from filing the appeal within the time stipulated may allow it to be filed within a further period not exceeding 60 day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. In the absence of any express or implied provision, it cannot be said that Section 29(2) of the Limitation Act could be construed to be excluded when it was not so excluded in respect of Section 35G(3) prior to its substitution by Section 35H. 7.6 The above comparative study clearly indicates that where the legislature, as in the case of FEMA 1999, intended to limit the power of condonation of delay, had clearly indicated so, particularly, the period up to which it can be condoned. But the most significant part of it is that the power to condone the delay has not altogether been taken away, though limited to a particular period. Thus, in the absence of any clear or express provision or intendment by implication the application of Section 29(2) of the Limitation Act in relation to Section 35H of the Central Excise Act cannot be excluded. 7.7 In order to hold that the legislature had intended to exclude the application of Section 29(2) of the Limitation Act by implication, it has to be ascertained from the scheme of the Act itself. When both Sections 35G and 35H are preceding and following each other with identical expressions with regard to limitation, it cannot be interpreted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y made applicable to the Tribunal in the absence whereof the Tribunal could not assume power under Section 5. But for Courts, Section 5 applies automatically by reason of Section 29(2) unless expressly or impliedly excluded. We may also refer to the decision in Nihal Karan v. Commissioner of Wealth Tax - (1987) 168 ITR 508 of the Madhya Pradesh High Court by a Special Bench, dealing with Wealth Tax Act in relation to application of Section 5 of the Limitation Act. On the same reasoning followed by the Gauhati High Court, the applicability of Section 29(2) in relation to Section 27(2) of the Wealth Tax Act was upheld. We may also refer to Prem Chand Bansal & Sons v. Income-tax Officer - (1999) 237 ITR 65 by the Delhi High Court, dealing with Section 256(2). Relying on the decision in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker - (1995) AIR SC 2272, it was held that the application of Section 29(2) cannot be excluded in relation to the jurisdiction exercised by the High Court under Section 256 of the Income Tax Act while referring to the decision in CIT v. Taylor Instrument Co. (India) Ltd. - (1992) 64 Taxman 6, by the Delhi High Court. 7.11 Mr. Dutta relied on Hukumdev Nara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 523. This decision had dealt with the power to grant stay in exercise of the reference jurisdiction by the High Court. It was not dealing with the question of applicability of Section 29(2) or Section 5 of the Limitation Act. In the said decision, it was held that while exercising reference jurisdiction the High Court exercises an advisory jurisdiction and as such it cannot exercise powers other than those ancillary to the exercise of such power and that the High Court possessed no inherent power to act ex debito justiciae while exercising such reference jurisdiction. The proposition is not in dispute. Therefore, this decision is of no help to us. That apart, the ancillary power of the High Court, if understood in the sense as Mr. Dutta wanted us to understand, in that event, it would not include the power to dismiss a reference once presented on the ground of limitation. If it appears to the Court that the reference application is barred by limitation, it is the power ancillary to the exercise of the jurisdiction of reference under which the application could be dismissed on the ground of limitation. Once the ancillary power is available in exercise of jurisdiction under refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permits it. Therefore, it also subscribes to the view that unless the power is excluded, the Court can exercise such power. 7.17 Mr. Banerjee on the other hand, relied on the decision in Sakuroo v. Tanaji - 1985 (22) E.L.T. 327 = (1985) 3 SCC 590, paragraph 3 at page 329 since relied upon in Prakash H. Jain (supra). In this decision Section 5 of the Limitation Act was made applicable since the authority under the Andhra Pradesh (Telangana areas) Tenancy and Agricultural Lands Act, 1950 was held to be a Court. 7.18 From the discussion above, it is crystal clear that the application of Section 29(2) of the Limitation Act cannot be excluded in relation to Section 35H of the Central Excise Act. Conclusion : 8.While exercising jurisdiction under Section 35H of the Central Excise Act, there seems to be no provision in the statute to exclude impliedly or expressly the application of Section 29(2) of the Limitation Act. On the contrary, a comparative study of the different fiscal laws as amended and as discussed hereinbefore clearly indicates that the legislature has never intended to exclude the application of Section 29(2) of the Limitation Act in relation to Section 35H of the Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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