9911796707
TMI Blog2008 (10) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Additional Commissioner, the petitioner has preferred these writ petitions. The petitions were listed before a Division Bench of this court which was of the opinion that there are conflicting views by this court with regard to the applicability of section 5 of the Limitation Act and consequently the matter deserved to be decided by a larger Bench. The two Division Bench decisions of this court, which according to the learned judges, contain conflicting views, were Foremost Industries India Limited v. Lt. Governor [W.P. (C). No. 221 of 2002, decided on 18th July, 2005- Delhi High Court] and Walia Electronics v. Government of NCT of Delhi [2004] 111 DLT 778. The learned judges therefore referred the following question to a larger Bench: Whether section 5 of the Limitation Act can be invoked for the condonation of delay in filing revision application under section 47 of the Delhi Sales Tax Act. The question which came up for consideration in the case of Foremost Industries India Limited [W.P. (C). No. 221 of 2002, decided on 18th July, 2005-Delhi High Court] was whether the Additional Commissioner was correct in holding that the delay in filing the revision petition could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of any order other than an order referred to in section 44 or to which section 46 applies, passed by a person appointed under sub-section (2) of section 9 to assist him, the Commissioner may, either on his own motion or on an application filed in accordance with such rules as may be prescribed, call for the record of any proceeding under this Act in which any such order has been passed and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such orders thereon, not being an order prejudicial to the dealer, as he thinks fit: Provided that the Commissioner shall not revise any order under this sub-section,- (a) where an appeal against the order is pending before the appellate authority under section 43; or (b) where, if such appeal lies, the time within which it may be filed has not expired; or (c) where in the case of the second appeal, the dealer has not waived his right of appeal. (2) The Commissioner shall not on his own motion revise any order under this section after the expiry of two years from the date of the order sought to be revised. (3) In the case of an application for revision under this section by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for short, "the Rules") and as per rule 39, the provisions of rules 36 to 38 relating to appeals have been applied mutatis mutandis to revisions under section 47. Therefore when a revision is filed after the expiry of the prescribed period under section 47(3), and is supported by an application, duly verified, setting forth the facts, showing sufficient cause for not preferring the revision within the said period, then the officer adjudicating the revision has to decide that application and, thus, the principles of section 5 of the Limitation Act have been incorporated in the Scheme of the Act and the Rules. To hold otherwise will have the effect of rendering the provisions of rule 36(4) redundant which could never be the intention of the Legislature when it consciously applied the said provisions for the purpose of revisions under rule 39 of the Rules. On the other hand, on behalf of the Revenue it is submitted that the sales tax authorities are not courts even though they have certain duties assigned to them for imposition and collection of tax and in the process they have to perform duties which are quasi-judicial. Section 5 can be relied upon for extension of time in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igned to ensure the speedy and final determination of fiscal matters within a reasonably certain time schedule. The court quoted with approval the following observations in Smt. Ujjam Bai v. State of U.P. [1963] 1 SCR 778: "The taxing authorities are instrumentalities of the State. They are not a part of the Legislature; nor are they 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." While considering provisions of the U.P. Sales Tax Act the court held that they are merely administrative Tribunals and not courts and section 14 of the Limitation Act, therefore, does not in terms apply to proceedings before such Tribunals. The court considering section 10 of the U.P. Act noted the following Scheme: "Three features of the Scheme of the provisions of above provision are noteworthy. The first is that no limitation has been prescribed for the suo motu exercise of its jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961 is not a court but is merely a Tribunal exercising the judicial power of the State. As the provisions of the Limitation Act are not intended to be made applicable to proceedings before authorities other than courts governed by the Code of Civil Procedure or the Code of Criminal Procedure, section 5 of the Limitation Act, will not apply to applications made to the Appellate Tribunal and, therefore, the Tribunal has no power to condone delay in filing reference applications under section 66(1) of the Income-tax Act, 1961. In Commissioner of Agricultural Income-tax v. Thalayar Rubber Industries Ltd. [1981] 131 ITR 162 a Full Bench of the Kerala High Court has held that section 69 of the Kerala Agricultural Income-tax Act, 1950, indicates that provisions of sections 4 to 24 of the Limitation Act are not attracted to proceedings under the Act and the Tribunal has no jurisdiction to condone delay in filing an application for reference under section 60(1) of the said Act. In Inspecting Assistant Commissioner of Income-tax (Acquisition) v. Kedar Nath Jhunjhunwalla [1982] 133 ITR 746 a Division Bench of the Patna High Court has held that section 29(2) of the Limitation Act will apply t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as and to the extent to which they are expressly not excluded by such special or local law. Under section 29(2) of the Limitation Act, 1908, as amended in 1922, only section 4, sections 9 to 18 and section 22 of that Act applied ordinarily unless excluded by a special or local law. The court then noted the amendment made in the Act of 1963 to section 29(2) whereby the amended section incorporates two changes namely, (i) a uniform rule making it applicable to all applications except those mentioned therein, and (ii) to all special and local enactments unless excluded by any of them. After considering various judgments, the court held that the provisions of section 5 of the Limitation Act do not govern the filing of election petitions or their trial, though in an appellate forum from an order of the High Court to the Supreme Court the provisions would apply considering that an appeal is a creature of statute. In Fairgrowth Investments v. Custodian reported in [2004] 11 SCC 472, the Supreme Court while considering the provisions of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 and considering section 29(2) of the Limitation Act examined whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "As far as the language of section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to subsection (3). In our opinion, this phrase would amount to an express exclusion within the meaning of section 29(2) of the Limitation Act, and would therefore bar the application of section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result." In L.S. Synthetics Ltd. v. Fairgrowth Financial Services Ltd. AIR 2005 SC 1209 the court held that the provisions of the Limitation Act have no application so far as the directions required to be issued by the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 are concerned and in that regard made the following observations: "33. The Limitation Act, 1963 is applicable only in relation to certain applications and not all applications despite the fact that the words 'other proceedings' were added in the long title o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condone delay in case sufficient cause is shown and rule 36(4) merely prescribes the procedure for filing an application for condonation of delay in preferring the appeal. By virtue of rule 39 of the Rules the provisions of rules 36 to 38 have been made applicable mutatis mutandis for revisions under section 47 of the Act. Rule 36(4) will have no application in respect of proceedings under section 47 in as much as revisional authority is not conferred any power to condone delay. By enacting section 62(2) the Legislature has clearly indicated that the provisions of the Limitation Act except sections 4 and 12 are excluded insofar as proceedings under section 47 are concerned. Rule 36(4) cannot, by any stretch of imagination, be said to be conferring power for condonation of delay on the revisional authority exercising power under section 47 of the Act.
In view of the foregoing discussion, we are of the opinion that section 5 of the Limitation Act does not apply to proceedings under section 47 of the Delhi Sales Tax Act. Reference is answered accordingly.
The registry is directed to place the petitions before the appropriate Bench for further proceedings. X X X X Extracts X X X X X X X X Extracts X X X X
|
