TMI Blog2018 (8) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as procedural code, then the application of Limitation Act has to be seen from the scope of application of the Statute and not the Limitation Act. Thus, Himachal Pradesh Value Added Tax Act, 2005, is a complete code in itself, which, in other words, is both a substantive as well as a procedural law and as there is no provision contained in the Act, making the provisions of Limitation Act applicable to the proceedings which are to originate from the Act - this Court has no inherent power to condone the delay in entertaining a Revision Petition which stands filed beyond the period of limitation prescribed in the Act. The applications for condonation of delay in filing the Revision Petitions are not maintainable - application dismissed. - CMP(M) No. 1371 of 2017 with 1334, 1372 of 2017, and CMP(M) No. 564 of 2018 & 320 of 2018 - - - Dated:- 18-6-2018 - Mr. Sanjay Karol, And Mr. Ajay Mohan Goel JJ. For the applicants/ : Mr. Ashok Sharma, Advocate petitioners General with M/s. Ranjan Sharma, Ritta Goswami and Adarsh Sharma, Additional Advocate Generals for the applicants/State for the applicants/ petitioners in CMP(M)s No. 1371, 1334, 1372 of 2017 and CMP(M) of 32 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of the Hon ble Supreme Court:- i) Commissioner of Customs and Central Excise versus Hongo India Private Limited and another, (2009) 5 Supreme Court Cases 791; ii) Patel Brothers Versus State of Assam and others, (2017) 2 Supreme Court Cases 350; 5. Section 48 of the Himachal Pradesh Value Added Tax Act, 2005 (hereinafter referred to as 2005 Act ) provides as under:- 48. Revision to High Court. -( 1) Any person aggrieved by an order made by the tribunal under sub-section (2) of section 45 or under subsection (3) of section 46, may, within 90 days of the communication of such order, apply to the High Court of Himachal Pradesh for revision of such order if it involves any question of law arising out of erroneous decision of law or failure to decide a question of law. (2) The application for revision under sub-section (1) shall precisely state the question of law involved in the order, and it shall be competent for the High Court to formulate the question of law. (3) Where an application under this section is pending, the High Court may, or on application, in this behalf, stay recovery of any disputed amount of tax, penalty or interest payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 5 of the Limitation Act to Section 19 of the 1983 Act. 10. Now, incidentally Section 19 (supra) inter alia conferred upon the High Court suo motu power of revision whereas in the Act with which we are dealing with, no such like suo motu power stands conferred upon the High Court. 11. In fact, the question of law which was decided by Hon ble Supreme Court in Patel Brothers (supra) is almost para materia to the one as is before us in these Revision Petitions. In the said case, the question of law before the Hon ble Supreme Court was as to whether provisions of Section 5 of the Limitation Act, 1963 are applicable in respect of Revision Petition filed in the High Court under Section 81 of the Assam Value Added Tax Act, 2003. Section 81 of the said Act reads as under:- 81. Revision to High Court : (1) Any dealer or other person, who is dissatisfied with the decision of the Appellate Tribunal, or the Commissioner may, within sixty days after being notified of the decision of the Appellate Tribunal, file a revision to the High Court, and the dealer or other person so appealing shall serve a copy of the notice of revision on the respondents to the proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, including Section 5 of the Limitation Act. Section 29(2) stipulates that in the absence of any express provision in a special law, provisions of Sections 4 to 24 of the Limitation Act would apply. If the intention of the legislature was to make Section 5, or for that matter, other provisions of the Limitation Act applicable to the proceedings under the VAT Act, there was no necessity to make specific provision like Section 84 thereby making only Sections 4 and 12 of the Limitation Act applicable to such proceedings, inasmuch as these two Sections would also have become applicable by virtue of Section 29(2) of the Limitation Act. It is, thus, clear that the Legislature intended only Sections 4 and 12 of the Limitation Act, out of Sections 4 to 24 of the said Act, applicable under the VAT Act thereby excluding the applicability of the other provisions. 15. Coming back to Himachal Pradesh Value Added Tax Act, 2005, we find that there is no provision whatsoever contained in this Act by virtue of which it con be inferred that that any provision of Limitation Act was to apply to a proceeding under this Act. 16. Further, in Patel Brothers (supra), Hon ble Supreme Court (two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reference application under Section 35-H(I) of the Unamended Act, has power under Section 5 of the Limitation Act, 1963 to condone the delay beyond the period of prescribed under the main statute i.e. the Central Excise Act. While answering the same, the Court that:- 32. As pointed out earlier, the language used in Sections 35, 35-B, 35-EE, 35-G and 35-H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days. 33. Even otherwise, for filing an appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of the Limitation Act. It is well settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act. 37. In the light of the above discussion, we hold that the High Court has no power to condone the delay in filing the reference application filed by the Commissioner under unamended Section 35-H(1) of the Central Excise Act, 1944 beyond the prescribed period of 180 days and rightly dismissed the reference on the ground of limitation. 38. In view of the above conclusion, we confirm the decision of the High Court. Hence, all the appeals are accordingly dismissed. No costs. (Emphasis supplied) 18. Section 35-H of the Central Excise Act, 1944, which was being interpreted by the Hon ble Supreme Court in Commissioner of Customs and Central Excise versus Hongo India Private Limited and another (supra), reads as under:- 35H. Application to High Court - (1) The Commissioner of Central Excise or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under section 35C pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o read into the Act an inherent power of condoning the delay by invoking Section 5 of the Limitation Act, 1963, so as to supplement the provisions of the Himachal Pradesh Value Added Tax Act, 2005, which excludes the operation of Section 5 by necessary implication. 23. At this stage, it is relevant to refer to the law laid down Hon ble Supreme Court in Hukumdev Narain Yadav v. Lalit Narain Mishra (1974) 2 Supreme Court Cases 133, wherein it has been held that where a Statute is a complete code in itself, meaning thereby that it is a substantive as well as procedural code, then the application of Limitation Act has to be seen from the scope of application of the Statute and not the Limitation Act. It was held in the said judgment as under:- 17. Though Section 29(2) of the Limitation Act has been made applicable to appeals both under the Act as well as under the Code of Criminal Procedure, no case has been brought to our notice where s. 29(2) has been made applicable to an election petition filed under s. 81 of the Act by virtue of which either ss. 4, 5 or 12 of the Limitation Act has been attracted. Even assuming that where a period of limitation has not been fixed for e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t which provides for the extension of the period of limitation till after the disability in the case of a person who is either a minor or insane or an idiot is inapplicable to, an election petition. Similarly, ss. 7 to 24 are in terms inapplicable to the proceedings under the Act, particularly in respect of the filing of election petitions and their trial. 24. Mr. Rakeshwar Lal Sood, learned Senior Counsel has also relied upon the following Judgments: i) Girnar Traders (3) v. State of Maharashtra, (2011) 3 SCC 1; ii) Gopal Sardar vs. Karuna Sardar, (2004) 4, SCC 252; iii) Innovative Industries Ltd vs. ICICI Bank, 2018(1) SCC 407; 25. Well, we do not dwell any further on the above mentioned judgments so relied upon by learned Senior Counsel because they reiterate the principles of law laid down by the Hon ble Supreme Court with which we have already dealt above. 26. In view of discussion held above, taking into consideration the fact that Himachal Pradesh Value Added Tax Act, 2005, is a complete code in itself, which, in other words, is both a substantive as well as a procedural law and as there is no provision contained in the Act, making the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
