TMI Blog2016 (12) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the period of 240 days i.e. 120 days of limitation period and 120 days of delay. This clear exclusion renders the appeal filed by the Government beyond the period of 240 days as one barred by limitation. The condonation of delay period is beyond the period prescribed by the statutory provisions and the same is not legally sustainable and therefore, this Court has come to the conclusion that since the second respondent has filed the appeal beyond the period of limitation as prescribed under Section 36(1) of the Act, the impugned order passed by the first respondent/Tribunal is liable to be set aside - delay not condoned - appeal allowed - decided in favor of appellant-assessee. - W.P.(MD) No.4891 of 2009 and M.P.(MD) No.1 of 2009 - - - Dated:- 16-11-2016 - MR.JUSTICE M.GOVINDARAJ For the Petitioner : Mr.A.Chandrasekaran For the Respondent : Mr.Raja Karthikeyan Addl. Govt. Pleader ORDER The prayer in this writ petition is for issuance of a writ of certiorari to quash the order, dated 30.04.2009, passed in Madurai Tribunal State Miscellaneous Petition No.79 of 2004, by the first respondent, as it is arbitrary, illegal, invalid and against the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er person, admit an appeal, presented after the expiration of the first mentioned one hundred and twenty days and sixty days as the case may be, if it is satisfied that the appellant had sufficient case for not presenting the appeal within the first mentioned period.? 4. According to the petitioner, the second respondent in his affidavit, dated 16.09.2004, filed in support of the condone delay petition, has stated that the order, dated 29.12.2003, passed in A.P.No.103 of 2003, by the Appellate Assistant Commissioner (C.T.), Madurai (North), was received by their office on 20.01.2004 and the appeal should have been filed on or before 19.05.2004. But, the appeal was filed only on 16.09.2004 with a delay of 120 days. The petitioner raised an objection to the delay in filing the appeal as it falls outside the condonable period. 5. The learned counsel for the petitioner submitted that as per Section 36(1)(i) of the Act, the limitation period for filing appeal by the Government is 120 days and it is 60 days in the case of others. Proviso to Section 36 of the Act specifies a further period of 120 days and 60 days respectively in the case of Government and others. 6. The learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es around the issue of limitation. As per Section 36(1) of the Act, the limitation period for filing appeal by the Government is 120 days, whereas it is 60 days for others. Therefore, it is clear that within 120 days, the Government should have filed appeal. It is further specified that the Appellate Authority is empowered to admit the appeal presented by the Government, after further period of 120 days, if sufficient cause is given for not filing the appeal within the limitation period. Therefore, it is clear that appellate authority is empowered to condone the delay upto 120 days after the expiry of the limitation period as specified in the proviso to Section 36 of the Act. Since the statute provides for a specific period of limitation, the authority concerned cannot condone the delay beyond the period of 240 days i.e. 120 days of limitation period and 120 days of delay. This clear exclusion renders the appeal filed by the Government beyond the period of 240 days as one barred by limitation. 10. It is the contention of the petitioner that in the Certificate, dated 26.11.2008, issued by the Appellate Deputy Commissioner, it was certified that the order in A.P.No.103 of 2003, da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Act shall not apply.? Therefore, section 5 of the Limitation Act was not applicable to appeals preferred under Section 38 of the Tamil Nadu General Sales Tax Act, 1959. Section 38, proviso, which we have extracted above enabled the High Court to excuse the delay in filing the petition even if it was preferred after the period of ninety days provided under sub-section (1). After the Limitation Act, 1963 was enacted, section 29(2) was recast and it now stands: 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 sofar as and to the extent to which, they are not expressly excluded by such special or local law.? Thus, under the Indian Limitation Act, 1908, the applicability of section 5 to any proceedings under special or local law was specifically excluded, but u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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