TMI Blog2017 (6) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal he has no jurisdiction to condone the delay beyond the condonable period. Considering Section 85(3A) of the Finance Act, 1994 commissioner (appeals) has no jurisdiction to condone the delay beyond the condonable period of one month. Appeal dismissed - decided against Revenue. - TAX APPEAL NO. 227 of 2017 - - - Dated:- 13-4-2017 - MR. M.R. SHAH, AND MR. B.N. KARIA, JJ. For The Appellant : MS Vaibhavi K Parikh, AdvocatE For The Respondent : Mr Dhaval D Vyas, Advocate ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] ADMIT. Shri Dhaval Vyas, learned advocate waives service of notice of admission on behalf of the respondents. [2.0] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Customs, Excise Service Tax Appellate Tribunal, West Zone Bench at Ahmedabad (hereinafter referred to as the learned tribunal ) dated 18/08/2016 in Appeal No.ST/11837/2015 by which the learned tribunal has dismissed the said Appeal, which was preferred beyond the period of three months, on the ground that as held by the Hon ble Supreme court in the case of Singh Enterprise Vs. Commissioner of Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case the learned tribunal has materially erred in dismissing the Appeal preferred by the appellant confirming the Order-In-Appeal passed by the learned Commissioner (Appeals) rejecting the Appeal against the Order-In-Original on the ground that beyond the condonable period of one additional month after the allowed two months for filing the Appeal the Commissioner (Appeals) has no jurisdiction to condone the delay. [5.1] Shri Tushar Hemani, learned advocate appearing on behalf of the appellant has vehemently submitted that in the present case the learned tribunal has materially erred in not properly appreciating the fact that the assessee preferred the Appeal on the 90th day. It is submitted that therefore the learned tribunal ought not to have confirmed the order passed by the learned Commissioner (Appeals) taking the view that the Appeal was preferred beyond condonable period of one additional month after the allowed two months for filing the Appeal. [5.2] It is further submitted by Shri Tushar Hemani, learned advocate appearing on behalf of the appellant that in the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra) while considering Section 244A of the Income Tax Act and considering the term month in Section 244A of the Income Tax Act the Division Bench has observed and held that the term month must be given ordinary sense of term, i.e. 30 days of period and not British Calender month as defined under Section 3(35) of the General Clause Act, 1897. It is further submitted by Shri Tushar Hemani, learned advocate appearing on behalf of appellant that if the word three months is considered and /or interpreted as ninety days , as suggested on behalf of the revenue, in that case, there shall be uncertainty, as in a given case there shall be different number of days in calender month i.e. 30 days, 31 days, 28 /29 days as the case may be. It is submitted that therefore the provision is required to be interpreted in such a manner that it avoids uncertainty. [5.4] It is further submitted by Shri Tushar Hemani, learned advocate appearing on behalf of the appellant that in the taxing statute the statute is required to be interpreted liberally and it must be justice oriented, which widens the scope of justice. It is submitted that in the taxing statute when two interpretations are possib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s both in substantive part of Sub- Section (3) of Section 85 IBID as well as in its proviso, it would not be open for the Court to substitute the words three months by words ninety days . It is further observed and held by the Division Bench that to do so would amount to rewriting the legislative provision, which is not permissible. It is submitted that therefore in the facts of the case and when the Appeal before the learned Commissioner (Appeals) was preferred beyond the period of three months i.e. beyond the condonable period of one additional month after the allowed two months for filing the Appeal, no error has been committed by the learned tribunal in dismissing the Appeal and confirming the order passed by the learned Commissioner (Appeals) rejecting the Appeal on the ground that considering Clause 85(3A) of the Finance Act, 1994 he has no jurisdiction to condone the delay beyond the condonable period. [6.1] Now so far as the reliance placed upon the decisions of the Bombay High Court and Calcutta High Court and the decision of the Division Bench of this Court by the learned advocate appearing on behalf of the appellant is concerned, it is submitted that none of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the case on behalf of the appellant that the word month is to be read and /or considered as 30 days . Meaning thereby the word three months mentioned in Clause 85(3A) of the Finance Act, 1994 shall be read as ninety days and not as per the British Calender month as per Section 3(35) of the General Clauses Act, and therefore, as the Appeal was preferred on the 90th day (may be beyond the period of three months) the learned Commissioner (Appeals) was authorised to condone the delay on sufficient cause being shown. [7.2] Identical question came to be considered by the Hon ble Supreme Court in the case of State of H.P. and Anr Vs. M/s. Himachal Techno Engineers and Anr (Supra) . In the said decision the Hon ble Supreme Court had an occasion to consider the word three months mentioned in Section 34(3) of the Arbitration and Conciliation Act, 1996. Before the Hon ble Supreme Court, High Court had held that three months mentioned in Section 34(3) of the Arbitration and Conciliation Act, 1996 refers to the period of ninety days , but the Hon ble Supreme Court did not agree with the same and held that such a view is erroneous. Before the Hon ble Supreme Court the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC 3596 : 2001 AIR SCW 3346). Therefore when the period prescribed is three months (as contrasted from 90 days) from a specified date, the said period would expire in the third month on the date corresponding to the date upon which the period starts. As a result, depending upon the months, it may mean 90 days or 91 days or 92 days or 89 days. [7.3] Identical question also came to be considered by the Division Bench of Allahabad High Court in the case of Ashok Kumar Tiwari (Supra) and while interpreting Section 85(3) of the Finance Act, 1994, Allahabad High Court has observed and held in paragraph 4 to 7 as under; The first issue, which has arisen in the appeal, relates to the construction of the provisions of Section 85 of the Act of 1994. Section 85 reads as under; 85. Appeals to the Commissioner of Central Excise (Appeals) . [(1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals).] (2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner. (3) An appeal shall be pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviso to sub-section (3) of the Act of 1994, the Commissioner of Central Excise (Appeals) is empowered, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within a period of three months, to allow it to be presented within a further period of three months. Parliament has used the expression three months both while quantifying the original period of limitation as well as while defining the extent to which a delay beyond three months can be condoned. Now, at the outset, it must be noted that the maximum period within which an appeal can be presented before the Commissioner of Central Excise (Appeals), can in no circumstances, exceed six months. This period of six months is comprised of the original period of three months and, if sufficient cause is shown, a further period of three months beyond which the delay cannot be condoned. Once the outer limit of time as stipulated in sub-section (3) of Section 85 has expired, it is not open to the Commissioner (Appeals), or for that matter, to any higher forum, to condone the delay utilizing the provisions of Section 5 of the Limitation Act, 1963. This position in law is not in dispute in view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court does not appear to have accepted that submission. There the High Court is right, because S. 3(27) of the Bengal General Clauses Act, I of 1899, defines 'a month' to mean a month reckoned according to the British calendar. The expression 'six months' which occurs in S. 533 of the Act must accordingly be construed to mean six calendar months and not 180 days. The offence, being alleged to have been committed on the expiry of December 20, 1967, and the prosecution having been instituted on June 19, 1968, the provisions of S. 533 must be held to have been duly complied with. The Division Bench of the Allahabad High Court by observing above has specifically held that the expression three months under Section 85(3) of the Finance Act, 1994 cannot be considered to be ninety days and it must be construed as three calender months. [7.4] As such, we are in complete agreement with the view taken by the Allahabad High Court in the case of Ashok Kumar Tiwari (Supra) , and therefore, it cannot be said the learned Commissioner (Appeals) has committed any error in rejecting the Appeal on the ground of limitation by observing that beyond the condonable p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and /or interpretations. As rightly observed by the Allahabad High Court in the case of Ashok Kumar Tiwari (Supra) once the Legislature has used the expression three months both in substantive part of sub-Section (3) of Section 85 ibid as well as in its proviso, it would not be open for the Court to substitute the words three months by words ninety days and to do so would amount to rewriting the legislative provision, which is not permissible. [8.0] In view of the above and for the reasons stated hereinabove, we see no reason to interfere with the impugned judgment and order passed by the learned tribunal confirming the order passed by the learned Commissioner (Appeals) rejecting the Appeal on the ground of limitation and on the ground that as the Appeal was preferred beyond the period of three months , considering Section 85(3A) of the Finance Act, 1994 he has no jurisdiction to condone the delay beyond the condonable period of one month. [9.0] Under the circumstances, the present Tax Appeal fails and the same deserves to be dismissed as is accordingly dismissed and the questions of law is held against the assessee and in favour of the revenue. - - TaxTMI - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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