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TMI Blog2019 (11) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... the delay in the revision filed under Section 48 read with Section 64(5) of the Act of 2005, against the order passed by Himachal Pradesh Tax Tribunal. The Division Bench of the High Court relying upon the decision of a Coordinate Bench in CMP(M) No.1371 of 2017 titled State of Himachal Pradesh & others v. Tritronics India Private Limited, has held that provision of Section 5 of the Limitation Act, cannot be applied and the High Court cannot condone the delay. The revision has to be filed within 90 days, as provided in Section 48 of the Act of 2005. 3. The provisions contained in Section 48 of the Act of 2005, relating to the revisional power of the High Court, read as under: "48. Revision to High Court. ( 1) Any person aggrieved by an order made by the tribunal under subsection (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 subsection (1) shall precisely state the question of law invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise v. Hongo India Private Limited, (2009) 5 SCC 791, rendered in the context of the provisions contained in Section 35 of the Central Excise Act, 1944, in which it has been held that reference has to be made to the High Court within 180 days, and there is no power of the High Court to condone the delay after the expiry of the prescribed period of 180 days. Thus, the High Court has held that provisions of Section 5 of the Limitation Act, are not applicable and stand excluded in the matter of revision filed under Section 48 of the Act of 2005. 5. The provisions contained in Section 29 of the Limitation Act deals with savings. The provisions in respect to the limitation prescribed for any suit, appeal or application by any special or local law, is different from the period prescribed by the Schedule, the provisions of Section 3 shall apply if the Schedule prescribed such period. The provisions contained in Sections 4 to 24 shall apply only in so far as and to the extent to which they are not expressly excluded. Section 29(2) is extracted hereunder: "29. Savings.- (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 29(2) has been made applicable to an election petition filed under Section 81 of the Act by virtue of which either Sections 4, 5 or 12 of the Limitation Act has been attracted. Even assuming that where a period of limitation has not been fixed for election petitions in the Schedule to the Limitation Act which is different from that fixed under Section 81 of the Act, Section 29(2) would be attracted, and what we have to determine is whether the provisions of this Section are expressly excluded in the case of an election petition. It is contended before us that the words "expressly excluded" would mean that there must be 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. As usual the meaning given in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is, in this case, the Act, and the nature of the remedy provided therein are such that the Legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities may be conferred with the powers under the Codes of Civil or Criminal Procedure, however, special statute may contain an express provision conferring on the Appellate Authority the power to extend the prescribed period of limitation on sufficient cause being shown by laying down that the provisions of Section 5 of the Limitation Act shall be applicable to such proceedings. In the absence of such provisions, Section 5 would have no application. 9. In Lata Kamat v. Vilas, (1989) 2 SCC 613, provisions contained in Section 28(4) of the Hindu Marriage Act, came up for consideration, wherein it was held that limitation prescribed therein is different from the Schedule of Limitation Act. Regarding the provisions of Section 29(2) of the Limitation Act, it was observed that the provisions of the Hindu Marriage Act do not exclude the operation of the provisions of Sections 4 to 24 of Limitation Act. They have been held to be applicable. Therefore, the time required for obtaining the copy of judgment has to be excluded, as provided in Section 12(2) of Limitation Act. The Court observed: "12. The Schedule in the Limitation Act does not provide for an appeal under the Hindu Marr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 5 for sufficient cause, it will have the power to condone the delay. Likewise, under Section 12(2), the time spent in obtaining a certified copy of the decree or order appealed from will be excluded. If it is so, Section 12(2) of the Limitation Act is attracted, and the appellants in all three appeals will be entitled to exclude the time taken by them for obtaining a certified copy of the decree and order. The appeals are, therefore, within time." Similar is the view taken by the Calcutta High Court in Sipra Dey case AIR 1988 Cal 28and also the M.P. High Court in Kantibai case AIR 1978 MP 245. It is therefore clear that the contention advanced by the learned counsel for the respondent based on the Limitation Act also is of no substance." 10. In State of W.B. & Ors. v. Kartick Chandra Das & Ors, (1996) 5 SCC 342, provisions of Section 29 of the Limitation Act came up for consideration concerning the letters patent appeal filed in contempt proceedings. It has been observed that there is no express exclusion of provisions of Sections 4 to 24 of Limitation Act by a special or local law, thus, on the strength of Section 29(2), Section 5 of Limitation Act becomes applicable. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded, Section 5 of the Limitation Act becomes applicable. We hold that Section 5 of the Limitation Act does apply to the appeals filed against the order of the learned Single Judge for the enforcement by way of a contempt. The High Court, therefore, was not right in holding that Section 5 of the Limitation Act does not apply. The delay stands condoned. Since the High Court had not dealt with the matter on merits, we decline to express any opinion on merits. The case stands remitted to the Division Bench for decision on merits." 11. In Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5, the question arose whether Appellate Authority constituted under Section 18 of Kerala Buildings (Lease and Rent Control) Act, 1965 has the power to condone the delay in filing of the appeal. The Appellate Authority dismissed the appeal on the ground that it had no power to condone the delay. The application for condonation of delay was not maintainable. This Court held that the Appellate Authority under Section 18 of Kerala Buildings (Lease and Rent Control) Act, 1965, acts as a Court and not a persona designatum, it can condone the delay under Section 5 of Limitation Act as the tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng it provides for a different period, while the former permits the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is, therefore, different from that prescribed in the former, and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act. 11. It is also obvious that once the aforesaid two conditions are satisfied, Section 29(2), on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that Section, all the provisions of Sections 4 to 24 of the Limitation Act would apply. Section 5, being one of them, would, therefore, get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act, taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court has observed: "6. The question which arose for consideration in Kaushalya Rani case was apparently the same as in the present case, namely, whether the time limit of sixty days prescribed in subsection (4) of Section 417 for making an application for special leave under subsection (3) of that section could be extended by invoking Section 5 of the Indian Limitation Act, 1908. This Court held that subsection (4) of Section 417 laid down a special period of limitation for an application by a complainant for special leave to appeal against an order of acquittal and "in that sense, this rule of sixty days bar is a special law, that is to say, a rule of limitation which is specially provided for in the Code itself, which does not ordinarily provide for a period of limitation for appeals or applications. This Court pointed out that since "the special rule of limitation laid down in subsection (4) of Section 417 of the Code is a special law of limitation governing appeals by private prosecutors, there is no difficulty in coming to the conclusion that Section 5 of the Limitation Act is wholly out of the way, in view of Section 29(2)(b) of the Limitation Act." The appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Section 29, subsection (2) of the Limitation Act, 1963, in clear and unambiguous terms, provides for the applicability of Section 5 and the ratio of the decision in Kaushalya Rani case AIR 1964 SC 260 can, therefore, have no application in cases governed by the Limitation Act, 1963, since that decision proceeded on the hypothesis that the applicability of Section 5 was excluded by reason of Section 29(2)(b) of the Indian Limitation Act, 1908. Since under the Limitation Act, 1963, Section 5 is specifically made applicable by Section 29, subsection (2), it can be availed of for the purpose of extending the period of limitation prescribed by a special or local law, if the applicant can show that he had sufficient cause for not presenting the application within the period of limitation. It is only if the special or local law expressly excludes the applicability of Section 5 that it would stand displaced. Here, as pointed out by this Court in Kaushalya Rani case, the time limit of sixty days laid down in subsection (4) of Section 417 is a special law of limitation, and we do not find anything in this special law which expressly excludes the applicability of Section 5. It is tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the Arbitral Tribunal: Provided that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months, it may entertain the application within a further period of thirty days, but not thereafter." Proviso to Section 34(3) provides three months period for making an application. The Court, if satisfied on sufficient cause shown, may entertain the application within a further period of thirty days, but not thereafter. In Popular Construction Co. (supra) the Court held: "8. Had the proviso to Section 34 merely provided for a period within which the court could exercise its discretion, that would not have been sufficient to exclude Sections 4 to 24 of the Limitation Act because "mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5" Mangu Ram v. Municipal Corpn. o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court is satisfied that the applicant was prevented by sufficient cause for not making the application within three months. The use of the words "but not thereafter" in the proviso makes it clear that even if a sufficient cause is made out for a longer extension, the extension cannot be beyond thirty days. The purpose of proviso to Section 34(3) of the AC Act is similar to that of Section 5 of the Limitation Act, which also relates to extension of the period of limitation prescribed for any application or appeal. It vests a discretion in a court to extend the prescribed period of limitation if the applicant satisfies the court that he had sufficient cause for not making the application within the prescribed period. Section 5 of the Limitation Act does not place any outer limit in regard to the period of extension, whereas the proviso to subsection (3) of Section 34 of the AC Act places a limit on the period of extension of the period of limitation. Thus the proviso to Section 34(3) of the AC Act is also a provision relating to extension of period of limitation, but differs from Section 5 of the Limitation Act, in regard to period of extension, and has the effect of excluding S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act deals with appeals. As per Section 35, any person aggrieved by any decision or order passed by a Central Excise Officer may file an appeal to the Commissioner of Central Excise (Appeals) within sixty days from the date of the communication to him of such decision or order. The proviso to subsection (1) enables the Commissioner (Appeals) if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, to allow it to be presented within a further period of thirty days. 5. Section 35B speaks about appeals to the Appellate Tribunal. Any person aggrieved by certain decisions/orders passed by the Commissioner of Central Excise or the Commissioner (Appeals), may prefer an appeal to the Appellate Tribunal within three months from the date on which the order sought to be appealed against is communicated to the officer concerned or the other party. Subsection (5) enables the Appellate Tribunal to condone delay even beyond the prescribed period if there was sufficient cause for not presenting it within that period. 6. Section 35EE provides for revision by the Central Government. As per subsection (2), an ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." The Court has also taken note of the fact that the sufficient period of limitation of 180 days has been provided for reference, provision for condonation of delay was not made in filing the reference. The legislature intended that there should not be any condonation of delay beyond 180 days. The Court has observed with respect to the sufficiency of a period of 180 days which is more than the period prescribed for an appeal and revision thus: "33. Even otherwise, for filing an appeal to the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court, which is more than the period prescribed for an appeal and revision." Under the schem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts as well as the law applicable, and thus, have no bearing on the facts of the present case." The provision of section 19(1) of the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 is extracted hereunder: "19. High Court's power of revision.-(1) The High Court may suo motu at any time or on an application for revision made to it within three months of the award by an aggrieved party, call for the record of any case in which an award has been made under this Act by issuing a requisition to the Tribunal, and upon receipt of such requisition, the Tribunal shall send or cause to be sent to that Court the concerned award and record thereof." 17. In Patel Brothers v. State of Assam & Ors., 2017 (2) SCC 350, the question came up for consideration concerning the provisions contained in the Assam Value Added Tax Act. This Court considered the provisions contained in sections 81 and 84 of the VAT Act read with sections 5 and 29(2) of the Limitation Act. In the matter of condoning the delay in filing revision in the High Court, it has been held that given the provisions contained in sections 81 and 84 of the VAT Act, the provisions of section 5 of the Limitation Act cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent provisions contained therein but also to ensure finality of the decision made thereunder. The fact that the period of limitation described therein has been equally made applicable to the assessee as well as the Revenue lends ample credence to such a conclusion. We, therefore, unhesitatingly hold that the application of Section 5 of the Limitation Act, 1963 to a proceeding under Section 81(1) of the VAT Act, stands excluded by necessary implication, by virtue of the language employed in Section 84." This Court has considered section 84 of the VAT Act of Assam. Same is as follows: "84. Application of Sections 4 and 12 of the Limitation Act, 1963.- In computing the period of limitation under this Chapter, the provisions of Sections 4 and 12 of the Limitation Act, 1963, shall, so far as may be, apply." Section 81 deals with revision, and section 84 deals with the Limitation Act. Section 84 makes a vital difference for the Chapter in which the provision of section 81 finds a place. Only the provisions of sections 4 and 12 of the Limitation Act are made applicable, and other provisions stand excluded by limited application of the provisions of the Limitation Act. The decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days, but in terms of the proviso, further 30 days' time can be granted by the appellate authority to entertain the appeal. The proviso to subsection (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days, which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period." 20. In Chaudharana Steels Private Ltd. v. Commissioner of Central Excise, Allahabad, (2009) 15 SCC 183, the question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt has relied upon the decision of this Court in Patel Brothers (supra) in the context of the Assam VAT Act in which the abovementioned provision of section 84 made the difference, which makes specific provision that only sections 4 and 12 of the Limitation Act are applicable. Consequently, it follows that other provisions are not applicable. The decision in Hongo India Private Limited (supra) also turned on the scheme of the Excise Act. The scheme of the Excise Act is materially different than that of the Himachal Pradesh VAT Act. Thus, the decision in Hongo India Private Limited (supra) also cannot be said to be applicable to interpret the Himachal Pradesh VAT Act. As the revision under the Act of 2005 lies to the High Court, the provisions of section 5 of the Limitation Act are applicable, and there is no express exclusion of the provisions of section 5 and as per section 29(2), unless a special law expressly excludes the provision, sections 4 to 24 of the Limitation Act are applicable. When we consider the scheme of the Himachal Pradesh VAT Act, 2005, it is apparent that its scheme is not ousting the provisions of the Limitation Act from its ken which makes principles of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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