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M/s. Patel Brothers Versus The State of Assam & 3 Others

2016 (5) TMI 648 - GAUHATI HIGH COURT

Condonation of delay of 335 days in preferring the revision - Applicability of Section 5 of the Limitations Act, 1963 to a revision filed - Section 81(1) of the Assam Value Added Tax Act, 2003 - Held that:- from the various judicial pronouncements it is crystallized that the statutory period for preferring appeal and/or revision under a special Act cannot be enlarged by taking recourse to Section 29(2) of the Limitation Act when there is an express or implied exclusion of the applicability of th .....

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the Act an inherent power of condoning the delay by invoking section 5 of the limitations Act so as to supplement the provisions of the Act when the Act of 2003 excludes the operation of section 5 by necessary implications. In the present case whether or not there is an express or implied exclusion of the operation of any of the provisions of the Limitations Act, 1963 is to be considered not on the basis of the language used in Section 29(2) of the Limitations Act but by giving a purposive inte .....

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provisions of section 5 of the Limitations Act, 1963 would be applicable to a revision filed under Section 81(1) of the Assam Value Added Tax Act, 2003 arises for determination in this series of applications, we propose to dispose of all these Miscellaneous Applications by this common order. For a proper appreciation of the issue, the facts involved in MC 1041/2015 are briefly stated herein below, taking the same as the lead case. 2. The petitioner was engaged in the business of purchasing tea f .....

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computed the assessment, thereby, allowing full exemption of sales tax to the aforesaid sale transactions as per the provisions of Section 8(5) of the CST Act, 1956. However, subsequently the Form C submitted by the petitioner turned out to be fake documents as a result of which the respondent No. 2 had passed an order dated 29/06/2004 for the years 1998-99 reducing the exemption earlier granted to the petitioner besides imposing penalty. Similar orders of re-assessment were also passed in respe .....

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the balance amount would be deemed to be stayed. The petitioner preferred an appeal before the Assam Board of Revenue (Appellate Tribunal ) against the said order dated 29/07/2005 which was dismissed by the order dated 26/08/2008. A review application filed against the aforesaid order also came to be dismissed by the Appellate Tribunal by its order dated 27/08/2013. Situated thus, the petitioner has approached this Court by filing a revision under section 81(1) of the Assam Value Added Tax Act, .....

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m assisted by Mr. S. Chetia, learned counsel appearing for the State respondents. 4. At the outset, the State counsel has raised objection regarding maintainability of the applications filed by the petitioner under section 5 of the Limitations Act, 1963 praying for condonation of delay stating that section 81(1) of the Assam Value Added Tax Act, 2003 (for short the Act of 2003) does not confer any jurisdiction upon the High Court to entertain a revision petition against an order passed by the ap .....

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he Supreme Court in the case of Commissioner of Customs and Central Excise Vs. Hongo India Private Ltd. reported in (2009) 5 SCC 791 as well as another decision of the Division bench of this Court in the case of Commissioner of Income Tax Vs. Williamson Tea (Assam) Ltd. reported in (2010) 1 GLR 57. 5. Mr. Joshi, learned senior counsel, on the other hand submits that even though section 81(1) of the Act of 2003 prescribes a period of 60 days within which the revision is to be filed before the Hig .....

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of 60 days. Similar provisions can be found in section 80 of the Act of 2003, whereby even the Appellate Tribunal has been conferred with the power to accept appeals filed after the expiry of 50 days for a further period of 120 days. It is, therefore, completely illogical, submits Mr Joshi, that the Legislator would have intended to deny such discretionary power of condoning the delay to the High Court, which is the superior forum under the Act. He submits that the High Court being the last Cour .....

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carefully noted the rival submissions made on behalf of the parties. In order to resolve the contentious issue involved in this proceeding, it would be essential to refer to the relevant provisions of the Act of 2003 as well as section 29(2) of the Limitations Act, 1963. Section 81 of the Act of 2003 provides for filing a revision before the High Court against a decision of an Appellate Tribunal within 60 days after being notified of the decision of the Tribunal. Section 81 is quoted herein belo .....

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to decide a question of law that shall be raised in the revision. (3) The Commissioner shall also be made a party to the proceedings before the High Court where revision is filed by the dealer or other person. (4) The High Court may on application either by the petitioner or by any of the respondents review any order passed by it provided such application is made within one year from the date of receipt of the judgement. (5) A revision or review application presented before the High Court under .....

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be, apply. 8. From a reading of the aforementioned provisions of the Act of 2003, what can be seen is that the intention of the legislature was to limit the application of the Limitations Act, 1963 only to sections 4 and 12 of the Act, to a proceeding under this chapter and section 5 has been consciously excluded from the purview of section 84. From a reading of section 84 of the Act of 2003, it is evident that the Legislature did not intend to confer upon the High Court the discretionary juris .....

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not only laying down the forums but also prescribing the time limit within which each forum would be competent to entertain the appeal or the revision. The underlying object of the Act appears to be to shorten the length of the proceedings initiated under the different provisions contained therein but also to ensure finality of the decisions made there under. The fact that the period of limitation prescribed therein has been equally made applicable to the assessee as well as the revenue lends am .....

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in the Act of 2003 expressly excluding the application of Section 5 of the Limitation Act, 1963, section 29(2) will come into play since the Act of 2003 is a special/ local Act where there is no period of limitation prescribed under the Limitation Act. Relying upon the decision of the State of Kerala and others Vs. Dr. S.G. Sarvothama Prabhu reported in (1999) 2 SCC 622, Mr. Joshi submits that since the words in Section 29(2) of the Limitation Act, 1963 are unambiguous, clear and explicit, ther .....

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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. 12. In the case of Union of India Vs. Popular Construction Co. Reported in (2001) 8 SCC 470, the apex Court, while dealing with the question of applicability of Section 5 of the Limitation Act, 1963 for condoning the delay in filing an application under Sectio .....

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s of the Limitation Act. It is sufficient if on a consideration of the language of its provisions relating to limitation, the intention to exclude can be necessarily implied. As has been said in Hukumdev Narain Yadav V. Lalit Narain Mishra reported in (1974) 2 SCC 133 (SCC p. 146, para 17). If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the pr .....

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eral statutory provisions would render Section 29(2) of the Limitation Act as redundant. The Apex Court has held that where words are unequivocal, the principles of interpretation cannot be applied to read something more. 14. In the case of Commissioner of Customs and Central Excise Vs. Hongpo India Private Ltd. and another (supra), the Apex Court had dealt with a similar issue regarding the power of the High Court to condone delay beyond the period specified under Section 35-H of the Central Ex .....

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e an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear th .....

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ecial law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court. 15. In the decision of the Division Bench of this court in the case of Commissioner of Income Tax Vs. Williamson Tea (Assam) Ltd. (Supra), a question as to the applicability of section 5 of the Limitation Act in .....

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ial Act cannot be enlarged by taking recourse to section 29(2) of the Limitation Act when there is an express or implied exclusion of the applicability of the provision of section 5 of the Limitation Act,1963. As has been mentioned above, the language employed in section 84 of the Act of 2003 clearly indicates that the provisions of the Limitation Act, save and except section 4 and 12, have been excluded from their applicability to any proceeding under that chapter and as such section 5 of the L .....

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speculate about the legislative intent. He submits that due to the clearer language and expression used in section 29(2) of the Limitation Act, this Court should accept the applicability of the Limitation Act rather than to speculate on the true legislative intent. Having regard to the ratio laid down in the case Hongo India Pvt Ltd (supra ), we do not find force in the said submission made by the learned senior counsel. 18. By referring to the order dated 25/06/2014 passed by the Division bench .....

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ements of the Apex court on the question of applicability of section 5 of the limitations Act. It further appears that neither did the department raise any question as regards maintainability of the application filed under section 5 of the Limitations Act nor was the applicability of section 5 to the proceeding under the Act of 2003 an issue before this court. As such, the order dated 25/06/2014 appears to have been passed in the facts of that case without laying down any binding precedent. As s .....

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