TMI Blog2005 (1) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... with law. 2.. All the petitioners have filed their returns for different assessment years, in pursuance of which, assessments were made by the assessing authorities. As the claims with reference to certain exemptions were not accepted by the assessing officer, all the petitioners have filed appeals before the first appellate authority. But those appeals were rejected by the first appellate authority on the ground that the appeals filed were barred by limitation, as they are filed with delay of more than thirty days, and therefore, the first appellate authority has no power, under the provisions of the Act, to condone the delay. Hence the present writ petitions assailing the said orders of the first appellate authority. 3.. Learned counsel for the petitioners contended that there was no justification for fixing the period of thirty days, for which the appellate authority was given the power to condone the delay in filing the appeals. The said restriction was imposed by way of an amendment to the provisions of section 19 of the Andhra Pradesh General Sales Tax Act, under which the first proviso was substituted by Act 8 of 1997 with effect from January 4, 1997. Prior to the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contentions of the petitioners. According to him, the Amendment Act of 1997 was specifically brought in, to simplify and streamline the provisions relating to the admission of appeals after condonation of delay and when such enactment was made by the Legislature with specific purpose, it is not open to the petitioners to contend that such provisions are causing hardship. According to the learned Government Pleader, the right of appeal is a statutory benefit conferred on the dealers and such benefit is circumscribed by the provisions contained therein and it is not open to the dealers to contend that the conditions imposed while conferring the right of appeal could not be applied. He also contended that prior to the enactment of Act 8 of 1997, the appellate authority was having wide discretion without any limit to condone the delay. As the same was causing undue delay in filing the appeals as well as in disposal of the same, the Legislature thought to streamline and regulate the procedure by simplifying it and accordingly brought the Amendment Act. When the Legislature brought this enactment with specific intention of reducing the discretionary powers of the appellate authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that "any dealer objecting to any order passed or proceeding recorded by any authority under the provisions of this Act may, within thirty days from the date on which the order or proceeding was served on him, appeal to such authority as may be prescribed". Proviso to section 19 of the Act as it was prior to the Amendment Act and after the Amendment Act, reads thus: Before the Amendment Act: Provided that the appellate authority may admit an appeal preferred after a period of thirty days aforesaid, if he is satisfied that the dealer had sufficient cause for not preferring the appeal within that period. After the Amendment Act: Provided that the appellate authority may within a further period of thirty days admit the appeal preferred after a period of thirty days, if he is satisfied that the dealer had sufficient cause for not preferring the appeal within that period. 9.. A perusal of the above clearly shows that prior to the amended proviso, inserted by Act 8 of 1997, the appellate authority was given unlimited discretion to condone the delay, if he is satisfied that the dealer had sufficient cause for not preferring the appeal within a period of thirty days. But this un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for condoning the delay. It would be appropriate to refer to section 29(2) of the Limitation Act, 1963, which reads as under: "Section 29. Savings. (1).......... (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." 13.. From the above provision, it is clear that 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 under the Limitation Act, the provisions of section 3 of the Limitation Act 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 applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urchased two samples and after analysis, as the samples were found to be adulterated, prosecution was launched against both the partners and the firm in respect of two samples under the provisions of the Prevention of Food Adulteration Act, 1954. Basing on the report of the Director, Central Food Laboratory for Analysis, the Judicial Magistrate, though found that the samples were adulterated, but as those samples were purchased by the firm from M/s. Venkateshwara and Company, which was the manufacturing concern, held that the accused were entitled to the benefit of section 19(2) of the Act, and accordingly acquitted them. The Municipal Corporation of Delhi made an application for special leave to appeal from the order of acquittal under sub-section (4) of section 417 of the Code of Criminal Procedure. But, however, as there was a delay of two days, an application for condonation of delay, invoking the provisions of section 5 of the Limitation Act, 1963, was filed. The Delhi High Court condoned the delay and granted special leave to appeal against the order of acquittal. The High Court denied the benefit of section 19(2) and thereafter basing on the certificate issued by the Directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, exercising its powers under section 11 of the Rent Act, passed order for possession against the appellant on October 28, 1993. The appellant filed an appeal before the appellate authority. As there was a delay in filing the appeal, an application for condonation of delay was filed. The appellate authority dismissed the appeal as barred by time, as the appellate authority was of the opinion that section 5 of the Limitation Act has no application, as decided by the High Court of Kerala, according to which the appellate authority is persona designata and it has no power to condone the delay in filing the appeal. The said order was confirmed by the High Court in a revision petition, hence further appeal before the apex Court. Before the apex Court it was contended that majority view of the Kerala High Court in Jokkim Fernadez v. Amina Kunhi Umma AIR 1974 Ker 162 that section 29(2) of the Limitation Act cannot apply to the proceedings before the appellate authority under section 18 of the Rent Act, was not correct. The apex Court, after referring to the provisions of the Rent Act and the authority designated to deal with the proceedings, concluded that the District Judge, who was ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid two conditions are satisfied, section 29(2) on its own force will get attracted to the appeals filed before the appellate authority under section 18 of the Rent Act. Hence section 5 of the Limitation Act is applicable to the appeals filed before the appellate authority under section 18 of the Rent Act. The apex Court while deciding the above appeal, distinguished its earlier decision in the case of Commissioner of Sales Tax v. Parson Tools and Plants [1975] 35 STC 413 (SC); (1975) 4 SCC 22 on the ground that the scope of section 29(2) was not considered in the above decision. Holding so the order of the High Court was set aside and the matter was remanded to the appellate authority. 18.. At this stage it would be appropriate to refer to a decision of the Supreme Court in Hukumdev Narain Yadav v. Lalit Narain Mishra (1974) 2 SCC 133, which was referred to and even relied upon by the apex Court in Union of India v. Popular Construction Co. (2001) 8 SCC 470. In Hukumdev Narain Yadav's case (1974) 2 SCC 133, the dispute arose under the Representation of the People Act, 1951 with reference to the limitation for filing an election petition. In that case, the respondent was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... When the Act was amended and the jurisdiction was given to the High Court to entertain and try election petitions, a provision similar to the proviso for condoning delay was not enacted. This omission definitely expresses Parliament's intention not to confer the power to condone any delay in the presentation of the petition. The whole object of the amendment in 1966 was to provide a procedure for a more expeditious method of disposal of election disputes, which experience had shown had become dilatory under the former procedure where election trials were not concluded even after five years when the next elections were held, notwithstanding the fact that every petition was enjoined to be tried as expeditiously as possible and endeavour was required to be made to conclude the trial within six months from the date on which the election petition was presented to the High Court for trial." In view of the above observations, the apex Court held that the provisions of the Limitation Act are not applicable, and accordingly confirmed the dismissal order of the High Court. 19.. In Popular Construction Company's case (2001) 8 SCC 470 the apex Court had an occasion to consider the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referring to the following observations in the case of Hukumdev Narain Yadav v. Lalit Narain Mishra (1974) 2 SCC 133: "Even in a case where the special law does not exclude the provisions of sections 4 to 24 of the Limitation Act, by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation." The apex Court also noted the specific words contained in proviso to section 34(3), which provides that an application contemplated under the said provision be made within a period of three months, which may be entertained within a further period of thirty days but not thereafter. Therefore, both on the wording of the said provision as well as taking into account the scheme of the Act, the apex Court held that the provisions of section 29(2) and consequently sections 4 to 24 of the Limitation Act are not applicable to the proceedings under the 1996 Act. 20.. In Commissioner of Sales Tax v. Parson Tools and Plants [1975] 35 STC 413 (SC); (1975) 4 SCC 22 a Bench of three learned Judges of the apex Court had an occasion to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rasad v. State of Uttar Pradesh [1963] 14 STC 536 (SC); AIR 1963 SC 416. The court also referred to the observations made in the larger Bench decision in Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC 1621, which reads as under: "The taxing authorities are instrumentalities of the State. They are not a part of the Legislature; nor are they a part of the judiciary. Their functions are the assessment and collection of taxes, and in the process of assessing taxes, they follow a pattern of action which is considered judicial. They are not thereby converted into courts of civil judicature. They still remain the instrumentalities of the State and are within the definition of 'State' in article 12." The court thereafter referred to the provisions of section 10 and sub-section (3-B), which prescribes the period of limitation for filing the revision. As per the said sub-section, the application under the revising authority shall be made within one year from the date of service of the order complained of, but the revising authority may, on proof of sufficient cause entertain an application within a further period of six months. After considering the scope of the above provisions, it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the case of Commissioner of Sales Tax v. Madan Lal Das Sons [1976] 38 STC 543 (SC) another Bench of three learned Judges of the apex Court considered the application of the provisions of section 12(2) of the Limitation Act, 1963 for exclusion of the period spent for obtaining a certified copy of the order against which an appeal was filed. The dispute relates to the assessment year 1960-61. An appeal filed by the respondent against the order of the Sales Tax Officer was disposed of by the Assistant Commissioner (Judicial), Sales Tax, Bareilly. A copy of the order was served on the respondent-dealer on August 2, 1965. The respondent, however, lost the said copy served upon him, therefore, made an application for obtaining another copy of the order on June 15, 1966. The copy was ready on August 17, 1967 and delivered to the respondent on August 18, 1967. Thereafter, a revision was filed under section 10 of the Act on September 9, 1967. The dealer claimed exclusion of the period spent for obtaining the certified copy of the order under section 12(2) of the Limitation Act. This claim was accepted by the revisional authority. But, however, at the instance of the department, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the object of the Act. At any rate, in the light of the three-Judge Bench decision of this Court in Hukumdev Narain Yadav case (1974) 2 SCC 133 and subsequently followed in Anwari Basavaraj Patil case (1993) 1 SCC 636 even though special or local law does not state in so many words expressly that section 5 of the Limitation Act is not applicable to the proceedings under those Acts, from the scheme of the Act and having regard to various provisions such express exclusion could be gathered......" 23.. In Rekha Timber Depot's case [2003] 129 STC 267 (AP), a division Bench of this Court, to which one of us (S. Ananda Reddy, J.) is a member, had an occasion to consider the constitutional validity of the proviso to section 19(1) of the Act. This Court upheld the validity of the said proviso under which the original discretionary power of the appellate authority was curtailed to thirty days under section 19(1) of the Act and sixty days in the case of appeal to the Sales Tax Appellate Tribunal under section 21(2) of the Act. In the said writ petition, the stand of the Revenue was that the unlimited discretion conferred on the authorities was being exercised resulting in abnormal delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to frustrate the appeal right of the other side as appears to have been done in the instant case. We are of the opinion that a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void. Appropriate legislation is required to be made in this regard. We direct the Registry that the copy of this judgment may be forwarded to the Ministry of Law and Justice for such action as it may deem fit to take in this behalf." 26.. If we examine the relevant provisions of the Act, in the light of the decisions referred to earlier, though the provisions of the Act do not contain any express words excluding the applicability of the provisions of the Limitation Act, but it has to be considered in the light of the scheme of the Act. First of all, the Andhra Pradesh General Sales Tax Act, 1957 is a self-contained code providing remedies for all possible contingencies that would arise in the administration of the provisions of the said Act, viz., the Act provides to enforce the rights, forum is provided, procedure is prescribed, remedies including appeals and revisions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noticed by the apex Court, far away from the court which passed the judgment and decree. Under the above circumstances, we do not find any merit in the contention of the dealers as to the application of the provisions of the Limitation Act. 28.. Coming to the alternative contention that the dealers are entitled to file the certificates/form "C", "F" and "H" even after the completion of the assessment, the learned counsel for the petitioners relied upon a decision of the Madras High Court, in Vispro Foundry Engineers Limited v. Commercial Tax Officer [1991] 81 STC 169 (Mad.) where a learned single Judge had an occasion to consider the similar claim. The learned single Judge accepted the claim of the dealer holding that the petitioner therein was entitled to seek reopening of the final assessment, which was made levying a higher rate of tax than that was prescribed under section 8(1) of the Act in the absence of "C" forms. The learned single Judge relied upon a Full Bench decision of the same Court in State of Tamil Nadu v. Arulmurugan and Company [1982] 51 STC 381, and accordingly a direction was given to the assessing officer to reopen the assessment and consider the claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the issue whether the assessing authority has got the power to reopen the assessment at the requisition of the assessee on filing "C" forms, it however, observed: "Where the assessing authority is satisfied, in a given case, about the existence of sufficient cause, it must necessarily be followed up by appropriate action, such as reopening the assessment already completed. Perhaps the requisite corrective action can be taken by invoking the assessing authority's statutory power of rectification of mistakes." In our opinion, the said observations are only obiter dicta and cannot be relied upon either by the learned single Judge, who decided the case in Vispro Foundry Engineers Limited [1991] 81 STC 169 (Mad.) or can be relied upon as a binding precedent. Further, in any case, even if such power is vested with the assessing officer, it is for the dealers to approach the assessing authority and they cannot directly approach this Court under article 226 of the Constitution of India seeking such relief. Insofar as the rights of the dealers to file such declaration during the pendency of the appeals as was held by the Full Bench of the Madras High Court, there cannot be any dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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