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2016 (4) TMI 319 - BOMBAY HIGH COURT

2016 (4) TMI 319 - BOMBAY HIGH COURT - TMI - Period of limitation - Invokation of Section 61(1) of the Bombay Sales Tax Act, 1959 - Held that:- an order of the court cannot override the legal provision and which is specific in nature. The court cannot, by recording any concession and of the present nature, waive the period of limitation statutorily prescribed. That binds all, including the Revenue. This court cannot, in its inherent jurisdiction, give a go by to such a statutory prescription and .....

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erms. It the language is plain, unambiguous and clear, there is no scope for interpretation. We cannot whittle down or dilute the effect or rigor of the clear provision on some specious, general and vague plea or assumption of hardship and inconvenience to an individual. There is no power in this court to entertain a time barred application as the general power under section 5 of the Limitation Act, 1963 is restricted in its application to proceedings under section 61(1) of the Bombay Sales Tax .....

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me transactions and the same factual findings. The Tribunal found that all the transactions and which have been noted, either undertaken directly by the applicant or through their agents, were falling in the tax net. There was no proof of any inter-State sale. There was nothing on facts which could determine or enable the Tribunal to conclude that the assessment order and the first appellate authority's order are vitiated on law and facts. The Tribunal found that the applicant, for the period in .....

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es. - Decided against the appellant - Sales Tax Application No. 3, 4, 5 of 2016 - Dated:- 15-3-2016 - S. C. Dharmadhikari And A. A. Sayed, JJ. For the Appellant : Ms. Jyoti K. Vyas For the Respondent : Mr. V. A. Sonpal ORDER P. C. 1) The applicant appeared in person, in the sense that he authorised his wife Ms. Jyoti K. Vyas, who has identified herself, to remain present and argue the matters. She has argued the applications on the earlier occasion. She has also tendered written arguments. In he .....

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d evaluation of evidence. (ii) The finding of fact is vitiated by total non consideration of evidence sought to be produced by appellant and total exclusion of contentions under written arguments and other documents filed and appellant even though Tribunal itself directed appellant to file written arguments. (iii) Tribunal adopted para nos. 20, 21 and 22 from judgment of Tribunal under S. A. 950-952/97 without taking into account the fact that the said judgment was rectified on two points by ord .....

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ax Act, 1956. There cannot be estoppal against law and provisions of Section 12A of Bombay Sales Tax Act, 1959 do not override provisions of Central Sales Tax Act. So parameters applied under Para No. 20 are against principles of law finding is vitiated by application of wrong tests. (vi) Tribunal was under duty to examine entire evidence which is under custody of Sales Tax Officer as per his letter of 1/2/2001 which was produced by appellant before Tribunal and there as even admission by respon .....

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the Tribunal refusing to refer the questions and passed on 11th July, 2012, the applicant company and the directors had filed writ petition being Writ Petition No.537 of 2013. 4) Annexures to the present applications include the copy of the order passed in Writ Petition No. 537 of 2013 on 12th July, 2013. 5) This court, not only found that the rectification applications were rightly dismissed, but insofar as reference applications and their dismissal is concerned, this court in para 5 of the or .....

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under section 61 is time barred. On that review application, the following order came to be passed:- "Writ Petition No. 537 of 2012 was dismissed on 12 July 2013 and the order was uploaded on 23 July 2013. It was dismissed on the ground that petitioners have an alternative remedy available against the order of Tribunal. 2. It is contended by the review petitioner that the alternate remedy has become time barred. 3. We have heard learned counsel for the respondents. In response to a suggest .....

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l learned special counsel appearing for the Revenue/Department would submit that these applications cannot be entertained after the period of limitation specified in the legal provision, but in the light of the order passed on the review petition and reproduced above, Mr. Sonpal leaves the matter to the Court. 9) We have also heard the applicant in-person on this point and we find that an order of the court cannot override the legal provision and which is specific in nature. The court cannot, by .....

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d of limitation contrary thereto nor can it re-frame or re-word the statutory provision itself. Statute of limitation or a statutory provision prescribing a period of limitation and incapable of two interpretations ought to be construed by its terms. It the language is plain, unambiguous and clear, there is no scope for interpretation. We cannot whittle down or dilute the effect or rigor of the clear provision on some specious, general and vague plea or assumption of hardship and inconvenience t .....

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The order passed by the Tribunal takes note of all the arguments and which have been canvassed. This is not a case where a mixed question and of the above nature can be said to be question of law. Though it is urged that there is a perversity and the finding of fact is vitiated by total non consideration of evidence, what we find is that all these are mixed questions of fact and law. The attempt is to seek re- appreciation and re-appraisal of the factual findings. There is no perversity which co .....

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peals. The judgment and order of the Tribunal was not questioned in any further appeal. Further, the Tribunal has found that there are no debatable legal issues involved. The Tribunal has decided the matter by applying the correct legal principles. The Tribunal has found that the entire motive appears to be to delay the recovery of legitimate dues determined by the assessing authority. There are concurrent findings of fact and two appeals against such findings have been dismissed. 12) The Tribun .....

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