TMI Blog1980 (2) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... ), of some questions of law for opinion of the High Court against the decision of the Sales Tax Tribunal dated 15th February, 1977. The limitation for filing of that application is sixty days from the passing of an order in appeal by the Tribunal as provided by section 22(1) of the Sales Tax Act. The application for reference was filed on the twenty-seventh day after the expiry of sixty days and the delay in filing of the same was occasioned due to the fact that the assessee had filed an application for a certified copy of the judgment of the Tribunal against which reference was sought, which took the copying department thirty-five days in preparing the copy. Before the Sales Tax Tribunal, the counsel for the sales tax department took up the preliminary objection that the reference application was beyond the period of limitation and as such should be dismissed. That objection of the counsel for the department prevailed with the Tribunal and the reference application was dismissed as barred by time by order dated 20th September, 1977. Against this order of the Tribunal, the assessee has come up in writ petition under article 226 of the Constitution of India. 3.. Initially, the wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inds support from the Supreme Court decision in Commissioner of Sales Tax, U.P. v. Madan Lal Das Sons, Bareilly[1976] 38 S.T.C. 543 (S.C.). The following observations deserve to be noticed: "It is, however, contended by Mr. Manchanda that the U.P. Sales Tax Act constitutes a complete code in itself and as that Act prescribes the period of limitation for filing of revision petition, the High Court was in error in relying upon the provisions of sub-section (2) of section 12 of the Limitation Act, 1963. This contention, in our opinion, is wholly bereft of force. * * * * There can be no manner of doubt that the U.P. Sales Tax Act answers to the description of a special or local law. According to sub-section (2) of section 29 of the Limitation Act, reproduced above, for the purpose of determining any period of limitation prescribed for any application by any special or local law, the provisions contained in section 12(2), inter aria, shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law. There is nothing in the U.P. Sales Tax Act expressly excluding the application of section 12(2) of the Limitation Act for determining th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied to extend the period of limitation. We are unable to appreciate the argument in view of the clear provision contained in section 29(2) of the Limitation Act and in the absence of an express provision to the contrary in the Sales Tax Act, sections 4 to 24, inclusive of sections 5 and 12 of the Limitation Act, would apply to an proceedings under the special law, i.e., the Sales Tax Act, in the present case. Whether the benefit of section 12(2) of the Limitation Act can be given to reference application under section 22 of the Sales Tax Act will be decided while deciding the first question. 7.. Now we proceed to decide the first question referred for the opinion of the Full Bench. As held above, section 12(2) of the Limitation Act would apply to proceedings under the Sales Tax Act. Whether benefit of section 12(2) can be given to an application for reference or not, falls for our consideration and, in order to decide this point, it will be useful to reproduce section 12(1) and (2) of the Limitation Act: "12. Exclusion of time in legal proceedings.-(1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limitation Act, which was in the following terms: "12. (2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal, and an application fora review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded. " A comparison of the aforesaid provision with the present provision shows that Parliament, while enacting the new provision of section 12(2) of the present Limitation Act, has included the words "or for revisions" apart from what was contained in the old section 12(2) of the 1908 Limitation Act. If Parliament wanted to apply section 12(2) to all applications then the word "application" alone would have been used in section 12(2) and the words "for leave to appeal" would have been deleted. Therefore, it is clear that only revisions were sought to be included under section 12(2) for giving benefit of this provision to them, but the benefit was not enlarged to all applications including applications for reference under the Sales Tax Act. 11.. The learned counsel for the assessee has u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws: "Reliance has been placed by the learned Tribunal on Govindji v. Commissioner of Sales Tax, Madhya Pradesh[1955] 6 S.T.C. 183., which supports that view. But, a reference to the commentary by Chitaley on the Indian Limitation Act shows that there is a conflict of decisions on this point among the various High Courts. Even if technically section 12(2) of the Indian Limitation Act did not apply, the delay in filing the application could have been condoned under section 5 of the Indian Limitation Act by extending the period of limitation by the number of days spent in obtaining the certified copy. The Lahore view as stated in Muhammad Hayat Haji Muhammad Sardar v. Commissioner of Incometax, PunjabA.I.R. 1929 Lah. 170., was definitely in favour of allowing the period spent in obtaining a certified copy of the order while computing the period of limitation for a reference application." The aforesaid discussion shows that it was not firmly decided whether section 12(2) of the Limitation Act would be applicable to the reference application and as such this decision is of no assistance. 14.. In the Avtar Singh Ranjit Singh's case[1972] 30 S.T.C. 116., there is no discussion abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that period, the Sales Tax Tribunals had no jurisdiction to extend the period beyond six months which clearly negatived the applicability of the underlying principles of section 14(2) of the Limitation Act. 16.. The U.P. sales tax law was also under consideration of the Supreme Court in the Madan Lal Das Sons' case[1976] 38 S.T.C. 543 (S.C.)., where the question before us was specifically dealt with and it was held that by virtue of section 29(2) of the Limitation Act, the provisions of sections 4 to 24 of that Act became applicable to the U.P. sales tax law. It was certainly a special or local law and on that basis it was held that section 12(2) of the Limitation Act was applicable to revisions under the U.P. sales tax law. The argument that the U.P. sales tax law constitutes a complete code in itself and the period of limitation for revision has been prescribed therein and, therefore, section 12(2) of the Limitation Act be not applied, was specifically held to be without force. Accordingly, the decision in the Parson Tools' case[1975] 35 S.T.C. 413 (S.C.). is not the correct decision to be followed in this case in the face of a direct decision of the Supreme Court in the Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay down correct law and is overruled in view of the specific decision of the Supreme Court in the Madan Lal Das Sons' case(2). The view taken by us with regard to the Pansotra Radio Corporation's case(4), while considering the first question, would be applicable in answer to the second question also. 20.. Therefore the answer to the second question is that the delay caused in filing of the reference application due to obtaining of the certified copy of the order of the Tribunal against which reference is sought can be condoned under section 5 of the Limitation Act. 21.. In the result, our final conclusions are as follows: (1) The answer to the first question is in the negative, that is, that the benefit of section 12(2) of the Limitation Act cannot be allowed to an applicant in a reference application filed under section 22 of the Punjab General Sales Tax Act for excluding the time spent in obtaining the certified copy of the order of the Tribunal against which reference is sought. (2) The answer to the second question is in the affirmative, that is, the delay caused in filing of the reference application due to obtaining of the certified copy of the order of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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