TMI Blog1981 (4) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tax Officer held that during the said period the petitioners had purchased lime, sand and metal from unregistered dealers and those purchases were, therefore, liable to purchase tax under section 13 of the said Act. Against this order of assessment the petitioners unsuccessfully filed appeals, first to the Assistant Commissioner of Sales Tax and then to the Tribunal. The petitioners' second appeal to the Tribunal was dismissed on 24th November, 1972, and they applied for and obtained a certified copy of the judgment of the Tribunal on 19th December, 1972. Thereafter on 22nd February, 1973, the petitioners filed a writ petition, namely, Miscellaneous Petition No. 281 of 1973, on the original side of this High Court. During the pendency of the said Writ Petition on 27th March, 1973, the petitioners also filed an application for reference under section 61(1) of the said Act before the Tribunal. On 9th April, 1973, the said writ petition was admitted, and on 13th September, 1978, it was dismissed by a learned single Judge of this High Court (Madon, J.) holding that not only had the petitioners an alternative remedy under the said Act but they were pursuing it. On 30th March, 1979, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er resold with a profit-motive or consumed in the very business activity, for the carrying on of which they were purchased, the purchaser must be held to be carrying on the business of purchasing goods. It was further held that the goods purchased must be such as are indispensable for carrying on the particular business activity of the purchaser and must be goods without which such business activity would not exist and that the business activity of construction of buildings cannot exist without building materials. 4.. Turning now to the controversy before us, Mr. Shah, the learned counsel for the petitioners, relied upon section 29(2) of the Limitation Act, 1963, and submitted that the said provisions of the said section had made a deliberate departure from the provisions of section 29(2) of the Indian Limitation Act, 1908, and that while under the old Act section 5 did not apply to any period of limitation under a special or local law unless expressly made applicable, under the new Act section 5 applied unless it was expressly excluded by such special or local law. In support of this submission Mr. Shah relied upon the judgment of a Division Bench of this High Court in Vasanji G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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." The said Act was enacted while the old Limitation Act was in force and before the passing of the new Limitation Act, sections 59 and 60 of the said Act are as follows: "59. Application of sections 4 and 12 of Limitation Act.-In computing the period laid down under sections 55, 57 and 61 the provisions of sections 4 and 12 of the Limitation Act, 1963, shall so far as may be apply. 60.. Extension of period of limitation in certain cases.-An appellate authority may admit any appeal under section 55 and the Tribunal may admit an application under section 57 after the period of limitation laid down in the said sections, if the appellant or the applicant, satisfies the appellate authority or the Tribunal, as the case may be, that he had sufficient cause for not preferring the appeal or making the application, within such period." The words and figures "the Limitation Act, 1963" in sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 963, the Supreme Court held: "There is an important departure made by the Limitation Act, 1963, in so far as the provision contained in section 29, sub-section (2), is concerned. Whereas under the Indian Limitation Act, 1908, section 29, sub-section (2), clause (b), provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions of the Indian Limitation Act, 1908, other than those contained in sections 4, 9 to 18 and 22, shall not apply and, therefore, the applicability of section 5 was in clear and specific terms excluded. Section 29, sub-section (2), of the Limitation Act, 1963, enacts in so many terms that for the purpose of determining the period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24, which would include section 5, shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law. Section 29, sub-section (2), clause (b), of the Indian Limitation Act, 1908, specifically excluded the applicability of section 5, while section 29, sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., it has been held that sections 4 and 5 of the Limitation Act, 1963, which speak of courts, apply only to those applications which are made to courts and not to other tribunals. The decision of the Supreme Court in Commissioner of Sales Tax, Uttar Pradesh, Lucknow v. Parson Tools and Plants, Kanpur[1975] 35 S.T.C. 413 at 416 (S.C.)., was directly under a State Sales Tax Act. The question before the Supreme Court was whether section 14(2) of the Limitation Act, 1963, could be invoked for excluding the time spent in prosecuting an application under rule 68(6) of the U.P. Sales Tax Rules, 1948, for setting aside an order of dismissal of appeal in default under the U.P. Sales Tax Act, 1948, in computing the period of limitation for filing a revision under section 10 of that Act to the Judge (Revisions), Sales Tax. In that case, referring to the earlier decision of the Supreme Court in Jagannath Prasad v. State of Uttar Pradesh [1963] 14 S.T.C. 536 at 542 (S.C.); [1963] 2 S.C.R. 850., the Supreme Court held that the appellate authority and the Judge (Revisions), Sales Tax, exercising jurisdiction under the U.P. Sales Tax Act, 1948, were not courts but merely administrative tribunals. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e U.P. Sales Tax Act, was a court, and, therefore, section 29(2) of the Limitation Act, 1963, did not apply to proceedings before him was not raised in that case nor was any reference made in that case to the decision of the Supreme Court in the case of Parson Tools and Plants[1975] 35 S.T.C. 413 (S.C.). or to the earlier cases cited therein, namely, Smt. Ujjam Bai v. State of Uttar Pradesh1963] 1 S.C.R. 778. and Jagannath Prasad v. State of Uttar Pradesh[1963] 14 S.T.C. 536 at 542 (S.C.); [1963] 2 S.C.R. 850. In view of this position, this decision of the Supreme Court cannot be said to be directly on the point whether the Tribunal or other authority under a Sales Tax Act is a court or not, and it cannot help the petitioners. 8.. Mr. Shah, the learned counsel for the petitioners, next relied upon two decisions of the Orissa High Court, namely, Raghunath Agarwalla v. State of Orissa[1975] 36 S.T.C. 461. and Gandharb Misra v. State of Orissa[1975] 36 S.T.C. 466. In the first of these cases it was held that though the Sales Tax Tribunal was not a court, by virtue of section 29(2) of the Limitation Act, 1963, the provisions contained in sections 4 to 24 of that Act applied to proce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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