ANALYSIS OF SUPREME COURT ORDER ON THE EXTENDING THE LIMITATION

[Navjot Singh]

It is needless to point out that the law of limitation finds its root in two Latin maxims, one of which is ‘Vigilantibus Non-Dormientibus Jura Subveniunt’ which means that the law will assist only those who are vigilant about their rights and not those who sleep over them. 

1. ARTICLE 142 AND ARTICLE 141 OF THE CONSTITUTION OF INDIA.

1. The COVID-19 pandemic has forced unprecedented measures on the movement of people across the country, thereby also bringing the functioning of courts and tribunals to a grinding halt. Considering the scenario, where courts have become physically inaccessible, the Supreme Court of India on March 23, 2020, took Suo moto cognizance of a petition for an extension of limitation and passed an order extending the limitation prescribed either under the general law or special laws, whether condonable or not, for filing any petitions, applications, suits, appeals, and all other proceedings in all courts and tribunals from March 15, 2020, until the passing of further orders.

2. This extraordinary order was passed by the Hon’ble Supreme Court in the exercise of its powers under Articles 142 & 141 of the Constitution of India.

3. Article 142 of the Constitution, confers on the Hon’ble Supreme Court a plenipotentiary power to pass any order to do complete justice in any cause or matter pending before it.

4. Further, the phrase ‘complete justice’ is quintessential, as the existence of the same shows the amplitude and the all-pervasive nature of the power vested on the Hon’ble Court to ensure that ‘complete justice is done and this has to be viewed in contradistinction to the word ‘justice’.

5. Pertinently, on various occasions, Hon’ble Supreme Court has explained the meaning of the expression “complete justice”. In one of the case K. Veeraswami v. Union of India [1991 (7) TMI 368 - SUPREME COURT], the Supreme Court held that:

“it has always been a lawmaker and its role travels beyond merely dispute settling. It is a ‘problem solver in the nebulous areas”.

6. Supreme Court has tried to explain the phrase ‘complete justice’ in various judgments but it is still blurred. In some judgments, it is mentioned that it could be used when the law of statutes is silent.

7. However, if we analyze judgments on the use of Article 142 it seems like it is used to fill the lacuna of the law. But, when we go through the judgment on the ban on the sale of liquor near national and state highways, the said judgment has affected many hotels, bars, restaurants, and liquors shops which resulted in the unemployment of lakhs of people. Also, in the coal block case without hearing allottees, the apex court imposed a huge penalty on the owner/allottees of coal blocks. It shows that while giving “complete justice” the Apex court ignored the fundamental rights of an individual. But, let’s not go into that debate!

2. LIMITATION ACT,1963

1. The view of SC gets reinforced by the perusal of Section 29(2) of the Limitation Act, 1963.  which reads as under

“(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 to determine 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.”

2. The provisions of section 29(2) of the Limitation Act create a statutory presumption of express inclusion of the provisions of sections 4 to 24 of the Limitation Act into the provisions of the Special or Local law.

3. Now, such a statutory presumption cannot be displaced or rebutted by a mere assumption. Further, the principles of Section 4 of the Limitation Act, 1963 which is generally invoked by courts to allow the filing of petitions/applications/suits/appeals, etc., in case the limitation for filing ends when the courts are closed e.g., weekends, court holidays and court vacations.

4. Expiry of the prescribed period when a court is closed

“Where the prescribed period for any suit, appeal, or application expires on a day when the court is closed, the suit, appeal, or application may be instituted, preferred, or made on the day when the court reopens.

Explanation. - A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day.”

4. However, “courts being closed” under Section 4 of the Limitation Act is very narrow in scope in as much as to give the benefit of this section, it takes into account only courts beings closed. It does not take into account a situation of a lockdown of the whole country due to a pandemic when everything including courts is closed and people are prohibited from moving out of their houses. (AN ABNORMAL SITUATION!)

5. Even if it is presumed that the Explanation appended to Section 4 may prima facie indicate that the ‘courts closed due to lockdown’ falls within the scope of Section 4, but then also the same would not serve any purpose since the litigants would be compelled to rush to courts as soon as the lockdown is lifted (i.e. if the prescribed limitation ends during the lockdown period).

6. In light of the above discussion, it becomes essential to peruse the following provisions of the Limitation Act, 1963 through which, in different cases, petitioners would have taken support to justify their application for condonation of delay:

5. Extension of prescribed period in certain cases

“Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation. - The fact that the appellant or the applicant was misled by any order, practice, or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.”

7. Here, it will be worthwhile to take stock of the Hon’ble Supreme Court’s take on the phrase “sufficient cause”. Hon’ble Supreme Court in G.Ramagowda vs Special Land Acquisition officer observed that:

“The expression “sufficient cause” in Section 5 must receive a liberal construction to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay.”

8. That’s why, it is trite to state that the present lockdown cannot be treated as a routine court vacation (Section 4 of the limitation does not apply), which is why the Supreme Court has made a conscious decision of invoking its inherent powers under Article 142 read with Article 141 of the Constitution of India and not Section 4 of the Limitation Act, 1963.

3. CHRONOLOGY OF ORDERS BY SUPREME COURT EXTENDING THE LIMITATION

The order of the Hon’ble Court has come after its order dated 20th March 2020, in the case of UNION OF INDIA VERSUS P.D. SUNNY AND ORS. [2020 (3) TMI 1127 - SC ORDER] wherein the Hon’ble Court granted a stay on the orders of the Hon’ble High Court of Allahabad and High Court of Kerala precluding recovery of tax & dues.

Though on various occasions Hon’ble Supreme Court has extended the statutory time limit (DIRECTORATE OF ENFORCEMENT VERSUS SHRI ASHOK KUMAR JAIN - 1998 (1) TMI 529 - SUPREME COURT), however, it was the very first time when the Hon’ble Court had passed such a blanket order extending the limitation period regarding all proceedings whether under state law/central law or general law/special law.

Such order was not only necessary to safeguard the interest of the parties entangled in a suit/appeal/proceeding, but also, to protect courts/tribunals from the flood of applications that parties would have filed seeking condonation of delay in their respective cases on account of the outbreak of Covid-19 irrespective of the fact that whether or not such application can be made under the law concerning their case.

The Supreme Court Advocates on Record Association (SCAORA) had filed an application seeking the revival of the suo moto order passed by the Supreme Court on March 23, 2020, which had extended the limitation period with effect from March 15, 2020, until further orders.

• The bench comprising Chief Justice of India NV Ramana, Justices Surya Kant, and AS Bopanna passed the order in the suo moto case In Re Cognizance for Extension of Limitation the order said:

“We, therefore, restore the order dated 23^rd March, 2020 and in continuation of the order dated 8^th March, 2021 direct that the period(s) of limitation, as prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings, whether condonable or not, shall stand extended till further order”.

New Words to see -- all judicial or quasi-judicial proceedings, whether condonable or not

In a case, SAGUFA AHMED & ORS. VERSUS UPPER ASSAM PLYWOOD PRODUCTS PVT. LTD. & ORS. [2020 (9) TMI 713 - SUPREME COURT] the Three-Judge Bench of the Hon’ble Supreme Court headed by Chief Justice S.A. Bobde has clarified the implication of the Court’s March 23, 2020 order on an application filed for condonation of delay and stated that claims cannot be made to benefit from the order passed by the Court on March 23, 2020 (extending period of limitation), for also enlarging the period up to which delay can be condoned.

Now let’s come on to the meaning of the “judicial or quasi-judicial”

• Quasi-judicial – it means an authority that is required to act judicially either by an express provision or by its acts or by important implication of a bill or an act, the decisions of such an authority generally amount to quasi-judicial decisions. However, the executive or administrative bodies are not required to act judicially and are competent to deal with issues referred to them, their conclusions cannot be treated as quasi-judicial conclusions. For example, in this case- “THE ENGINEERING MAZDOOR SABHA REPRESENTING WORKMEN EMPLOYED VERSUS THE HIND CYCLES LTD., BOMBAY 1962 (10) TMI 62 - SUPREME COURT”.
• A Quasi-Judicial body or act suggests that there must be two or more parties and an outside authority to decide the discussion. Hence the presence of two rival parties is a must to hold the statutory authority as a quasi-judicial body. In circumstances where there are no two rival parties, it is a judicial procedure that is required to be followed in Quasi-Judicial acts.
• Quasi-judicial is also known as a non-judicial body that can interpret the law. It is an entity or an agency, which has powers and procedures that resemble a court of law or judge, and which is obliged to determine facts and draw conclusions from them to provide the basis of official action. Therefore, these actions are the remedy for a situation or to impose legal penalties, and the actions may affect the legal rights, duties, or privileges of specific parties.
• The term ‘judicial’ does not certainly mean the act of a Judge or Legal committee meeting for the discovery of a matter of law, but a judicial act is an act done by an authority who is competent, for consideration of facts and situations and impose liability or affect the rights of others. The case of “Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson”, deals with the meaning of the word “judicial”.
• It was observed that the word ‘judicial’ has two meanings. It refers to the discharge of duties which can be exercised by a Judge or by Judges in court or to administrative duties which need not be performed in court, but that is important to determine what is fair and just in respect of the matters under consideration or damages.

1. THE CIRCULAR NO. 157/13/2021-GST DATED THE 20TH JULY, 2021

The CBIC has taken the legal opinion to form a conclusion, to check the applicability of the Supreme Court order on certain actions in the CGST Act. Let’s understand the same para-wise.

• Para 3 (i)

(i) The extension granted by Hon’ble Supreme Court order applies only to quasi-judicial and judicial matters relating to petitions/ applications/ suits/ appeals/ all other proceedings. All other proceedings should be understood in the nature of the earlier used expressions but can be quasi-judicial proceedings. Hon’ble Supreme Court has stepped into to grant extensions only with reference to judicial and quasi-judicial proceedings in the nature of appeals/ suits/ petitions etc. and has not extended it to every action or proceeding under the CGST Act.

Our View: -

Meaning of the Quasi-Judicial Body based on the Acts/Powers

A quasi-judicial function comes in between administrative and judicial functions. In other words, a quasi-judicial decision is one where there is a dispute and process involving the ascertainment possibly also the legal argument, but where administrative action takes the place of the normal determination based on the evidence adduced under the relevant legal rules.

In the judgment of STATE OF GUJARAT & ANR VERSUS GUJARAT REVENUE TRIBUNAL BAR ASSOCIATION & ANR [2012 (10) TMI 633 - SUPREME COURT], the Apex Court of India observed that authority is a quasi-judicial body if:

• the statutory authority is empowered under a statute to do any act,
• the order of such authority would adversely affect the subject and,
• Even though there are no list or two contending parties, and the contest is between the authority and the subject, and
• the statutory authority is required to act judicially under the statute, the decision of the said authority is a quasi-judicial decision.

In MAHADAYAL PREMCHANDRA VERSUS COMMERCIAL TAX OFFICER, CALCUTTA AND ANOTHER [1958 (4) TMI 73 - SUPREME COURT], the procedure adopted by the Sales Tax Authorities was pronounced to be unfair and contrary to the principles of natural justice in that it had failed to afford to the appellant an opportunity of being heard. On these very principles, the Income Tax Authorities were held to be judicial or quasi-judicial bodies in SURAJ MALL MOHTA & CO. VERSUS AV VISVANATHA SASTRI AND ANOTHER - 1954 (5) TMI 1 - SUPREME COURT and it was observed by the Supreme Court that under the provision of Section 37 (corresponding to section 131 of the Income-tax Act, 1961) the proceedings before the Income Tax Officer are judicial proceedings and all the incidents of such judicial proceedings have to be observed before the result is arrived at. In other words, the assessee would have a right to inspect the records and all relevant documents before he is called upon to lead evidence in rebuttal. This right has not been taken away by any express provision of the Income-tax Act.

In CHOCKALINGAM (M.) AND MEYAPPAN (M.) VERSUS COMMISSIONER OF INCOME-TAX [1962 (10) TMI 48 - SUPREME COURT] speaking for the court observed that the authorities acting under the Income-tax Act have to act judicially and one of the requirements of judicial action is to give a fair hearing to a person before deciding against him.

Division Bench of this Court in Madras Granite (P) Limited Vs Commercial Tax Officer, Arisipalayam Circle, Salem and Another reported in  [2002 (10) TMI 767 - MADRAS HIGH COURT] has held that It is well-settled that the assessing officer is a quasi-judicial authority and in exercising his quasi-judicial function of completing the assessment, he is not bound by the instructions or directions of the higher authorities.

In the case of ASSISTANT COMMISSIONER, COMMERCIAL TAX DEPARTMENT, WORKS CONTRACT & LEASING, KOTA VERSUS M/S SHUKLA & BROTHERS [2010 (4) TMI 139 - SUPREME COURT] the Supreme Court observed that it shall be obligatory on the part of the judicial or quasi-judicial authority to pass a reasoned order while exercising statutory jurisdiction. In the absence of a reasoned order, it would become a tool for harassment.

Now, as per the jurisprudence and powers conferred upon the Assessing Officer in tax laws contains the ‘Quasi-Judicial Powers’, now this needs to be understood that, keeping in view the difficulties faced by lawyers and litigants across the country in filing petitions/applications/appeals, etc due to the lockdown, the Supreme Court, in the exercise of its powers under Article 142 passed the cited order.

Now, in our strong view, it will apply to every action of the Quasi-Judicial Authority i.e. Assessing Officer.

• Para 3(vi)

(vi) As regards issuance of show cause notice, granting time for replies, and passing orders, the present Orders of the Hon’ble Supreme Court may not cover them even though they are quasi-judicial proceedings as the same has only been made applicable to matters relating to petitions/applications/suits, etc. 

Our View: -

Use of May/Shall

We call "must" and "must not" words of obligation. "Must" is the only word that imposes a legal obligation on your readers to tell them something is mandatory. Also, "must not" are the only words you can use to say something is prohibited. Who says so and why?

Nearly every jurisdiction has held that the word "shall" is confusing because it can also mean "may, will, or must." Legal reference books like the Federal Rules of Civil Procedure no longer use the word "shall." Even the Supreme Court ruled that when the word "shall" appears in statutes, it means "may."

Bryan Garner, the legal writing scholar and editor of Black's Law Dictionary wrote that "In most legal instruments, shall violate the presumption of consistency … which is why shall is among the most heavily litigated words in the English language."

Those are some of the reasons why these documents compel us to use the word "must" when we mean "mandatory:"

The Federal Register Document Drafting Handbook (Section 3) states "Use ‘must’ instead of ‘shall’ to impose a legal obligation on your reader."

The Federal Plain Language Guidelines (page 25) (PDF) referred to in the Federal Plain Writing Act of 2010, compel FAA and every federal department to "use ‘must,’ not ‘shall’" to indicate requirements.

FAA Writing Standards, order 1000.36, (page 4) says to avoid the word "shall" and use "must" to impose requirements, including contracts.

Until recently, law schools taught attorneys that "shall" means "must." That's why many attorneys and executives think "shall" means "must." It's not their fault. The Federal Plain Writing Act and the Federal Plain Language Guidelines only appeared in 2010. And the fact is, even though "must" has come to be the only clear, valid way to express "mandatory," most parts of the Code of Federal Regulations (CFRs) that govern federal departments still use the word "shall" for that purpose.

With time, laws evolve to reflect new knowledge and standards. During this transition, "must" remains the safe, enlightened choice not only because it imposes clarity on the concept of obligation, but also because it does not contradict any instance of "shall" in the CFRs." Right now, federal departments go through their documents to replace all the "shall" with "must." It's a big hassle. If you look at page A-2, section q of this order, it shows a sample of how a typical federal order describes this shift from "shall" to "must." Don't go through this tedious process. If you mean mandatory, write "must." If you mean prohibited, write "must not."

What should you say if someone tells you "shall is a perfectly good word?" Always agree with them because they're correct! But in your next breath, be sure to say "yes, shall is a perfectly good word, but it's not a perfectly good word of obligation."

AJENDRAPRASADJI N. PANDE & ANR VERSUS SWAMI KESHAVPRAKESHDASJI N. & ORS. [2006 (12) TMI 546 - SUPREME COURT]

(iii) Under Order VI Rule 17, a defendant may at any stage of the proceedings be allowed to alter or amend the written statement.

(iv) Under proviso to Order 6 Rule 17, no application for amendment shall be allowed after the trial has commenced, unless the Court concludes that despite due diligence, the party could not have raised the matter before the commencement of trial.

Order VI Rule 17 main part uses the phrase 'the court may at any stage". The proviso uses the phrase "no application for amendment shall be allowed". The submission of the learned senior counsel is that when in the same section of an Act the word may is used in one place and shall in another place, may well have to be interpreted as may and shall have to be interpreted as shall. In such instances, may should not be maybe ought to interpret as shall and shall not be interpreted as may. The following rulings were relied on by the learned counsel for the above proposition:-

The two quotations were approved by this Court in THE STATE OF UTTAR PRADESH AND OTHERS VERSUS BABU RAM UPADHYA [1960 (11) TMI 116 - SUPREME COURT] and a law was down thus :

"When a statute uses the word "shall", prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstances, contingency of the non-compliance with the provisions.

In English grammar, shall is one of the “modal verbs” (also called “helping verbs”) like can, will, could, shall, must, would, might, and should. The purpose of a modal verb is to add meaning to the main verb in a sentence by expressing possibility, ability, permission, or obligation. For example, “You must complete this task on time”; “He might be the inspiration for my life”; “The doctor can see you now”. “Shall” is an interesting word because, in ordinary English, it is the least used modal verb. The most common ones are will, may, can, should, and would.

In STATE OF UP. VERSUS MANBODHAN LAL SRIVASTAVA [1957 (9) TMI 43 - SUPREME COURT], while examining the terms of Article 320, the Court observed,

“….the use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect….”

In KHUB CHAND AND ORS. VERSUS. STATE OF RAJASTHAN & ORS. [1966 (8) TMI 66 - SUPREME COURT] the Court held:

“Doubtless, under certain circumstances, the expression "shall" is construed as "may". The term "shall" in its ordinary significance is mandatory … unless such an interpretation leads to some absurd or inconvenient consequences…..”

In the STATE OF PUNJAB AND ANOTHER VERSUS SHAMLAL MURARI & ANR [1975 (10) TMI 105 - SUPREME COURT], the Court opined:

“The use of “shall” – a word of slippery semantics – in a rule is not decisive….."

Here are a few precedents of the US Supreme Court, some going back 150 years:

A legislative amendment from “shall” to “may” had no substantive effect. (Moore v. Illinois Central Railroad Company)

If the government bears the duty, the word “shall” when used in statutes is to be constructed as “may”, unless a contrary intention is manifest (Railroad Co v. Hecht)

“Shall” means “must” for existing rights, but that it need not be construed as mandatory when a new right is created (West Wisconsin Railway Company v. Foley)

Hence, the usage of the word ‘May’ in the para can be construed as ‘Shall’, as the overall circular intends to limit the benefit of the Supreme Court Order.

5. CIRCULARS ARE BINDING?

A circular is an official letter or advertisement that is sent to a large number of people at the same time.

In ‘M/S. HINDUSTAN COCA-COLA BEVERAGES PVT. LTD AND ANOTHER VERSUS UNION OF INDIA AND OTHERS - 2013 (4) TMI 83 - ALLAHABAD HIGH COURT the High Court held that the circulars are issued in exercise of statutory powers by the Departments and are binding on authorities and officials of the Department.

In ‘PAPER PRODUCTS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE’ – 1999 (8) TMI 70 - SUPREME COURT it was held by the Supreme Court that the departmental circulars are binding on the revenue authorities and as the circular was in force at the relevant point of time, the demand against the appellants is not sustainable.

In ‘COLLECTOR OF C. EX., VADODARA VERSUS DHIREN CHEMICAL INDUSTRIES - 2001 (12) TMI 3 - SUPREME COURT the Supreme Court held that if there are circulars which have been issued by the Central Board of Excise and Customs which place a different interpretation such interpretation will be binding upon the Revenue.

In ‘COMMISSIONER OF CENTRAL EXCISE VERSUS M/S AURO WEAVING MILLS M/S AURO TEXTILE LTD., M/S AURO SPINNING MILLS - 2016 (10) TMI 275 - HIMACHAL PRADESH HIGH COURT, the High Court held that the Board circulars are binding on Department so long as they remain in operation and not open to the Department to raise contention contrary to such circulars.

In ‘COMMISSIONER OF CENTRAL EXCISE VERSUS MALWA INDUSTRIES LTD. - 2009 (4) TMI 381 - PUNJAB & HARYANA HIGH COURT the High Court held that the Revenue is precluded from challenging the correctness of the circular even on the ground of same being inconsistent with statutory provisions.  The beneficial circulars are to be applied retrospectively while the oppressive circular is applicable prospectively.

6. CONCLUSION

Based on the above contentions, whatsoever is written in the circular is not something that would benefit the taxpayers. That’s the least, we expect from the CBIC.

But they have complicated the debate of applicability of the Supreme Court Order on various actions such as Filing Refund or filing any reply/Submissions in the light of Supra Order.

But one must keep in mind the intent of the Hon’ble Supreme Court while passing the order for extending the time limits benefiting the public at large.

 

By 

CA. Navjot Singh

Managing Partner - IDT

TaxTru Business Advisors

navjot.singh@taxtru.in | _91 9953357999