TMI Blog2002 (1) TMI 1302X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the assessment order dated 27/09/1990 in form No.19 for the assessment year 1989-90. A penalty under Section 12 (5) (iii) to the extent of ₹ 3,58,537/- was also levied. On 5/11/1990, the petitioner addressed the Appellate Assistant Commissioner, Commercial Taxes, Cuddalore, requesting him to instruct the Deputy Commercial Tax Officer to withhold the Assessment orders and further action to recover the arrears, as the final exemption orders are awaited from the Government of Tamil Nadu. Another communication dated 8/11/1990 was sent to the Assistant Commissioner, Commercial Taxes, Cuddalore with a similar request. The Assistant Commissioner, Commercial Taxes by a Communication dated 05/02/1991 informed the petitioner that the Assistant Commissioner, Commercial Taxes, Cuddalore is not the appellate authority and that the petitioner could seek legal remedies as per law. Thereafter, the petitioner filed an appeal under Section-31 in Form No.3 on 01/02/1991. The appellate authority on 8/2/1991 passed an order, dismissing the appeal on the ground that the same was filed with a delay of 93 days from the date of actual due. Aggrieved by the said Order, the petitioner filed an appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticularly when, for the communication of the petitioner to the Appellate Assistant Commissioner dated 5/11/1990, no reply was received. Alternatively, it is contended that even assuming the appeal was filed only on 01/2/1991, considering the fact that the State Government granted exemption from payment of sales tax with effect from 1/4/1990 and also in view of the fact that the petitioner is a cooperative society, this Court in the interests of justice can in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India direct the appellate authority to take the case on file and dispose it of on merits. 5. Learned counsel appearing for the Department contended that on 5/11/1990, the petitioner only sent a communication to the Appellate Assistant Commissioner, Commercial Taxes, Cuddalore to withhold the assessment orders and further action to recover the arrears as final exemption orders are awaited from the Government and that the communication cannot be, by any stretch of imagination, termed or called as an appeal. Learned Counsel further contended that Section 31 of the TNGST Act makes it very clear that the appeal has to be filed within thirty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly to condone the delay of 30 days in proper cases where the appellant shows sufficient cause. If one looks at the Communication dated 5/11/1990 sent by the petitioner to the Appellate Assistant Commissioner, it could be noticed that certainly it is not an appeal against the assessment order. If one carefully goes through the said communication, it could be seen that nowhere it is stated that it is an appeal and that the order of the assessment officer has to be set aside. Added to this, the same was not in the prescribed format. The provision under Section 31 (2) of the TNGST Act as could be seen, clearly lays down that the appeal shall be in the prescribed form and shall be verified in the prescribed manner. At the risk of repetition, it may be stated that the communication dated 5/11/1990 is not an appeal for the reason that the same has not been filed in a prescribed form with proper verification and there is no prayer to set aside the order of the Assessing Authority. In fact, there is not even an allegation in the body of the communication that the assessment order is erroneous for some reason or other and the same is liable to be set aside. Once this Court comes to this con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de not more than 15 days after the said last date and is accompanied by the prescribed fee. Thus, sub-section(3) vested in the Regional Transport Authority a power to entertain an application for renewal of a permit even if it is beyond time, but in that case the time should not be more than fifteen days. The question for consideration was, whether sub-section (3 ) could be said to expressly exclude the provisions of Section-5 of the Limitation Act which gives unlimited power to the Court or a Tribunal to excuse the delay irrespective of the number of days of delay? Considering this question, the Supreme Court held: It is therefore, clear that sub-section (3) of Section 58 confers a discretion on the Regional Transport Authority to entertain an application for renewal when it is made beyond the time-limit specified in the proviso to sub-section (2), but not more than 15 days late and the discretion is to be exercised in favour of entertaining the application for renewal when it is shown that there was sufficient cause for not making it in time. Now, the question which arises is : does Section 5 of the Limitation Act, 1963 apply so as to empower the Region ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin 90 days from the date of which copy of the order is served. By virtue of the 8th Amendment Act 1986 which came into effect on 15/12/1986, the High Court may within a further period of forty-five days, admit a petition preferred after the expiration of the said period of ninety days, if it is satisfied that the petitioner had sufficient cause for not preferring the petition within the said period. In the said Ruling, a Division Bench of this Court held that the period prescribed in the statue ( local law) is clear and that further Section 29 of the Limitation Act specifically provided that Sections 4 to 24 would apply only insofar as and to the extent to which they are not expressly excluded by such special or local law. The Court, in that case, ruled that there is an express exclusion of Section 5 of the Limitation Act. 13. The next ruling that can be usefully referred to is the one reported in 2000 STC (Vol.119) 387 (KANAKA DURGA AGRO OIL PRODUCTS LTD. vs. COMMERCIAL TAX OFFICER, BENZ CIRCLE, VIJAYAWADA AND ANOTHER). That was a case arising under Andhra Pradesh General Sales Tax Act. In that case, the petitioner agreed for the proposed assessment and gave a letter of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 15. Before we deduce the legal position, it is necessary to refer to the relevant provisions of the Act. Section-31 (1) of the Tamil Nadu General Sales Tax Act as it stood prior to the amendment reads as under: 31(1) Any person objecting to an order passed by the appropriate authority under (Section 4-A), Section 12, Section 14, Section 15, sub section (1) and (2) of Section 16, Section 18 (sub-section (2) of Section 22, Section 23 (or Section 27) other than an order passed by an Assistant Commissioner) may, within a period of thirty days from the date on which the order was served on him in the manner prescribed, appeal against such order to the Appellate Assistant Commissioner ( having jurisdiction) Subsequently, the first proviso clause came to be amended by way o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll. That by itself cannot be a reason to hold that the law of limitation prescribed in the statute should not apply in the case of the assessee. A running business has many persons employed in it and those who are required to conform to the requirements of the Act as dealers must take necessary precaution to conform to it's requirements. The fact that the extent of the delay is short is also by itself not a good reason, as once the period of limitation prescribed by law is over, the bar which the statute itself imposes on the authority to entertain the appeal is not to be lifted merely because the period of delay is a short one. Any such approach would result in practically rewriting the statutory provision and adding a proviso providing for a further grace period beyond what the statute has prescribed. ......... Article 226 of the Constitution cannot be used as a magic wand to get over the bar of limitation. As far as the present case is concerned, the explanation that since the Government was considering the request for exemption the appeal was not filed in time, cannot be said to be an acceptable one. 17. Learned counsel for the petitioner in his endeavour to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Limitation Act. The Court ruled as under :- The learned Additional Government Pleader (Taxes) contended that in the light of the language of Section 36 (6) of the Tamil Nadu General Sales Tax Act, there is no scope for condonation of delay or invoking Section 5 of the Limitation Act. In other words, the learned Additional Government Pleader contended that any review will have to be filed within a year and beyond that the Tribunal has no power to entertain the review application. We are unable to agree with the learned Additional Government Pleader. The fact that a limitation is prescribed does not mean that application of Section 5 of the Limitation Act is excluded from the purview of the section disabling the Presiding Officer from applying the same when invoked. It is well settled that unless a specific prohibition is there in the Section itself Section 5 of the new Limitation Act will apply (vide Arrya Vysia Samajam v. Murugesa Mudaliar 1990 TNLJ 82). The ratio laid down in the above case squarely applies to the facts of this case. Accordingly, we find there is no substance in the argument of the learned Additional Government Pleader. Consequently, the revision fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under Art.226 to exercise its discretion in his favour. (ii) In SALES TAX COMMISSIONER Vs. MODI SUGAR MILLS reported in AIR 1961 SUPREME COURT 1047, while interpreting taxing statute, the Supreme Court observed thus, In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The Court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed: it cannot imply anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency. Of course, the learned counsel for the petitioner placed reliance on the Division Bench decision of this Court reported in 2001 STC (Vol.1 21) 272 (MAHESWARI FIREWORKS INDUSTRIES Vs. COMMERCIAL TAX OFFICER AND OTHERS) and submitted that the High Court while exercising jurisdiction under Art.226 of Constitution of India, even though appeal before the appellate authority was filed beyond 60 days (prescribed time of 30 days to file appeal + 30 days for which period alone appellate authority has power to condon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay beyond 30 days. (c) While the High Court exercising the jurisdiction under Article 226 of Constitution of India, approves the correctness of the order of the appellate authority, it has no power to direct the appellate authority to consider the appeal on merits as otherwise it would be nothing but Court extending the period of limitation. (d) Even if the High Court accepts the explanation given by the assessee for not filing the appeal within the period prescribed under the Act, it cannot direct the appellate authority to consider the matter on merits as the High Court exercising jurisdiction under Article 22 6 of Constitution of India, cannot re-write the provisions of the Act. 24. In this view of the matter, this Court is of the opinion that the Writ Petition has to fail and consequently the Writ Petition is dismissed. Connected W.M.P., will stand closed. 25. The learned counsel for the petitioner submits that the petitioner is a Co-Operative Society and that it caters to the needs of only the workers and that the Government itself thought it fit to grant exemption and in fact granted exemption from 1990 onwards, and in those circumstances, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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