TMI Blog1983 (6) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... extension of the prescribed period claiming that they had sufficient cause for not preferring the applications within 90 days. Before we delve into the merits of the applications we are to ascertain whether this court has jurisdiction to extend the period of limitation prescribed by s. 27(3) of " the Act " in exercise of powers under s. 5 of the Limitation Act. Section 5 of the Limitation Act empowers the court to entertain any application, other than one under 0. XXI of the Code of Civil Procedure, even after the prescribed period, if the applicant satisfies the court that he had sufficient cause for not making the application within the prescribed period. Let us examine whether the provisions of ss. 3 and 5 are applicable in proceedings under s. 27(3) of the W.T. Act. To determine the question, we must turn to s. 29(2) of the Limitation Act. Section 29(2) of the Limitation Act, inter alia, lays down that where any special or local law prescribes for any application a period of limitation different from the period prescribed by the Schedule to the Limitation Act, s. 3 of the Limitation Act shall apply, as if such period were the period prescribed by the Limitation Act. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... controlled by ss. 4 to 24. It appears that if a special or local law expressly excludes the operation of ss. 4 to 24 the question of applicability of these sections need not be Considered while acting under s. 3 of the Limitation Act. To decide the question whether the provisions of ss. 3 and 5 of the Limitation Act are applicable to proceedings under s. 27(3) of the W.T. Act, it is essential to apprise the provisions of s. 29(2) of the Limitation Act, 1963, which we extract herein below : " 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." (Emphasis supplied). We are concerned only with "application " and not with suits or appeal. Let us, therefore, con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r conditions are fulfilled. Accordingly, we hold that the application under s. 27(3) of the W.T. Act is an application contemplated under the Limitation Act, 1963. The next question is whether the wealth-tax is a special law or not. It has been conceded at the bar that the W.T. Act is a special law. The concession has strong force behind it. There is no doubt that this is law, that is, a body of rules laid down for determining legal rights and legal obligations which are recognised by the courts. Unfortunately, the expression "special law " has not been defined either in the Limitation Act or in the General Clause Act. The division of laws into general, special or personal is a classification based on the extent of the operation of such laws. Ordinarily, a general law applies to the whole community. General law consists of the general or ordinary law of the land whereas, special or personal law consists of certain other bodies of legal rules which are so special and exceptional in their natural sources or application that it may be convenient to treat them as standing out of the general or ordinary law, as derogating from or supplementing them in special cases but not forming a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imitation Act, within the meaning of s. 29(2) of the Limitation Act. We find that the view we have taken in Naresh Chandra, AIR 1983 Gau. 24, finds support from Canara Bank Ltd. v. Warden Insurance Co. Ltd., AIR 1953 Bom 35. While explaining the meaning of the expression " period of limitation different from " as contained in s. 29(2) of the Limitation Act , 1908 Chagla C.J. and Gajendragadkar J. observed as follows (p. 36) : " The period of limitation may be different under two different circumstances. It may be different if it modifies or alters a period of limitation fixed by the First Schedule to the Limitation Act. It may also be different in the sense that it departs from the period of limitation fixed for various appeals under the Limitation Act. If the First Schedule to the Limitation Act omits laying down any period of limitation for a particular appeal and the special law provides a period of limitation, then to that extent the special law is different from the Limitation Act. " In Kaushalya Rani v. Gopal Singh, AIR 1964 SC 260, the Supreme Court has ruled that when there is no limitation prescribed by the Limitation Act for an appeal, application, etc., but a speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that it is time-barred; the applicant may, within 90 days from the date on which he is served with a notice of refusal or rejection, as the case may be, apply to the High Court, and the High Court may, if it is not satisfied with the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case to the High Court, and on receipt of such requisition the Appellate Tribunal shall state the case i ... " (Emphasis added) We have alluded that the object of the Limitation Act, 1963, is to bring all applications including those under special laws within the fold of the Limitation Act, 1963. A bare perusal of s. 27(3) clearly shows that ss. 4 to 24 of the Limitation Act have not been excluded by the W.T. Act. The provisions of the W.T. Act provide no compulsive words that the application must be filed within 90 days, or otherwise it will be dismissed, i.e., it does not provide for the consequence of not presenting an application within the period. Therefore, we find no mandatory or compulsive language. It does not provide that no application shall be entertained by the High Court after the expiry of 90 days. Even if we assume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to take resort to s. 3 of the Limitation Act to dismiss an application under s. 27(3) of " the Act ". The W.T. Act does admit the introduction of the provisions of ss. 3 to 24 of the Limitation Act, 1963. Apart from prescribing a period of limitation " the Act " does not prescribe anything which are dealt in ss. 3 to 24 of the Limitation Act. Therefore, it is hardly possible to hold that the W.T. Act has impliedly excluded the provisions of ss. 3 to 24 of the Limitation Act. However, the legislative history of s. 27 of the W.T. Act is somewhat intriguing. Section 27(9) of the W.T. Act, 1957, provided that s. 5 of the Limitation Act would apply but the same has been omitted after the deletion of sub-s. (9). Therefore, it is urged that by the deletion of the provision the benefit of s. 5 of the Limitation Act has been withdrawn. It has been urged that the intention of Parliament is clear that it does not desire to allow the High Court to extend the period of limitation under s. 27(3) of " the Act ". We extract the provisions of s. 27(9) of the W.T. Act (since deleted) : "(9) Section 5 of the Indian Limitation Act, 1908, shall apply to an application to the High Court under this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retaining sub-s. (9) of s. 27 of the W.T. Act. Rather, it would have created problems regarding applicability of ss. 4, 6 to 24 of the Limitation Act. It is thus seen that sub-s. (9) of s. 27 of the " the Act " was intentionally deleted by Parliament as it became redundant which makes it very clear that Parliament desired to apply the provisions of ss. 4 to 24 of the Limitation Act to proceedings under s. 27(3) of the W.T. Act. For the foregoing reasons we hold that the provisions of s. 3 as well as ss. 4 to 24 of the Limitation Act are applicable to proceedings under s. 27(3) of the W.T. Act and the High Court can extend the period of limitation under s. 27(3) of the W.T. Act acting under s. 5 of the Limitation Act provided the applicant can satisfy that he bad sufficient cause for not making the application within the prescribed period of limitation. While reaching this conclusion we have considered the principles of law enunciated by the Supreme Court in Hukumdev Narain Yadav v. Lalit Narain Mishra, AIR 1974 SC 480, Hari Shankar Tripathi v. Shiv Harsh [1976] 1 SCC 897; [1976] UJ (SC) 242, where their Lordships have stated that the provisions of the Limitation Act are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made applications for reference under s. 27(1) of " the Act". On March 11, 1978, the petitioners filed applications for rectification of the appellate order, dated September 13, 1977. On May 27, 1978, the applications for reference were dismissed " ex parte " and the learned Tribunal dismissed the prayers for rectification as well. On August 5, 1978, the petitioners filed applications for vacating the order, dated May 27, 1978, as well as for re-hearing the applications for rectification, dated March 11, 1978. The matters were heard and the Tribunal by its order, dated November 7, 1978, dismissed the applications, dated August 5, 1978, by two separate orders which were communicated to the petitioner on November 20, 1978. Thereafter, the petitioners filed one composite application on March 2, 1979, under s. 27(3) of " the Act", to this High Court asking for a reference. However, on May 17, 1979, the petitioners filed an application for leave of this court to file three separate applications under s. 27(3) of " the Act ", for the three assessment years 1971-72, 1972-73 and 1973-74. We do not find anything on record to show that any such leave was granted by this court. However, along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) are only against the orders, dated May 27, 1978. In our opinion, the period of limitation under s. 27(3) commences from the date of service of the notice of refusal or rejection of applications under s. 27(1) of the Act. In the instant case, the applications were rejected on May 27, 1978, and the notices of refusal were served on the petitioners on July 29, 1978. The period of limitation was " 90 days " from the date on which the assessee was served with the notices of refusal or rejection, that is, 90 days from July 29, 1978. The petitioners claim in para. 7 of their petition that the applications were filed beyond the period of 90 days but they had acted on instructions received from their counsel, Mr. A.K. Banerjee, who advised them that the reference applications before this court could be preferred within 6 months from the date of the order. The petitioners contend that the confusion as to the period of limitation was created by Mr. A. K. Banerjee, their counsel, as he thought that the reference applications were to be made under s. 256(2) of the I.T. Act, 1961. The petitioners have stated in their petition in the following terms : " The petitioners state that Sri A.K. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reference application may kindly be condoned. I myself supervised the entire matter and delay in filing the reference application was caused by my mistake as hereinbefore stated." (Emphasis supplied). It shows clearly that Shri Banerjee assumed that it was a reference under s. 256(2) of the I.T. Act and accordingly he had advised his clients to file the application within six months from the date of the order. Unwittingly he had advised the assessees that the period of limitation was six months whereas the period of limitation was 90 days, under s. 27(3) of " the Act ". He said that he was confused while giving advice as he was all along under the impression that it was a reference under the I.T. Act. Learned counsel claims that the assessees acted on his advice and the reference petition and other pleadings were drafted by him. Learned counsel has stated that in view of the wrong advice given by him the delay was caused. Therefore, it appears clear that the learned counsel owned the responsibilities of giving advice to the assessees that the period of limitation was six months from the date of the order and not 90 days as Provided in s. 27(3) of the Act. When the learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 79, to March 2, 1979. Therefore, even if we grant extension of the period up to the 28th or 29th January, 1979, giving a wide and extended meaning to the affidavit filed by the learned counsel, yet we find that there was no ground to condone the delay from January 29, 1979, to March 1, 1979. We are helpless. Under these circumstances, we are compelled to hold that the delay in preferring the applications under s. 27(3) of the W.T. Act cannot be condoned. Accordingly, the application stands dismissed. However, we make no order as to costs. Mr. D. N. Barua, learned counsel, has submitted that Shri Banerjee stated in his affidavit that he had instructed his clients to prefer the application under s. 27(3) against the order rejecting the prayer of the assessees for rectification. Admittedly, there is no such statement in his affidavit. A reference under s. 27(3) can be made only against an order passed under s. 24 of the Act and the question of law must arise out of the order passed under ss. 24 and 26. The law is very clear. No person instructed in law could have made such a statement and, naturally, Shri Banerjee, an advocate, could not have given such instructions. In fact he did ..... X X X X Extracts X X X X X X X X Extracts X X X X
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