TMI Blog2020 (1) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... lete code in themselves. The provisions relating to appeal, revision and review are contained in Chapter VII of the Act of 2003. Section 65 thereof provides for remedy of appeal to the assessee against the order of assessment before the Prescribed Authority within 45 days from the receipt of a notice of demand in respect thereof but with the stipulation that appeal may be entertained within such further period as may be allowed by the said authority for the cause shown to his satisfaction. Section 69 (1) of the Act of 2003 has provided for remedy of second appeal before the Appellate Tribunal against the decision of the Appellate Authority and the Revisional Authority, within sixty days. However, Section 69(2) vests the Appellate Tribunal with the power to admit the appeal even after sixty days if it is satisfied that the appellant had sufficient reason for not filing the appeal within the aforesaid time provided it is filed within one year. Obviously, here the discretion of Appellate Tribunal has been restricted allowing it to entertain the appeal beyond sixty days with a rider that such appeal in any case has to be filed within one year, which shall be counted from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s accordingly dismissed - revision petition dismissed. - CRP No. 32/2019 with MC [CRP] No.17/2019 - - - Dated:- 28-1-2020 - Hon ble Mr. Justice Mohammad Rafiq, Chief Justice And Hon ble Mr. Justice W. Diengdoh, Judge For the Petitioner/Appellant(s) : Dr. B.P. Todi, Sr. Adv. with Dr. A. Todi, Adv., Ms. P. Agarwal, Adv. For the Respondent(s) : Mr. A. Kumar, AG with Ms. S.G. Momin, Sr. GA ORDER PER MOHAMMAD RAFIQ, CJ, 1. This Civil Revision Petition has been filed by M/S Saj Food Products Pvt. Ltd. challenging the judgment dated 15.12.2015 passed by the Appellate Tribunal i.e., Meghalaya Board of Revenue, Shillong whereby the appeal filed by the petitioner against the judgment dated 23.01.2015 passed by the Commissioner of Taxes, Meghalaya, Shillong, has been dismissed, upholding decision of the Commissioner of Taxes that the item Rusk has to be treated as taxable item under residuary entry of Schedule IV of the Meghalaya Value Added Tax Act, 2003 (in short the Act of 2003 ) rather than treating it as an exempted item under the specific entry of Branded Bread specified under Entry 57 of Schedule I of the Act of 2003. 2. The facts of case are that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong, dismissing the review petition. When the matter was listed in the Court on 05.09.2019, learned Advocate General raised an objection that the Revision Petition is required to be filed within 60 days from the date of receipt of copy of the impugned order. Learned counsel for the petitioner sought time to file appropriate application seeking condonation of delay and eventually filed application for condonation of delay on 09.09.2019. The respondent-State filed affidavit-in-opposition/objections thereto on 25.09.2019. The matter was heard on the said application. 5. Dr. B.P. Todi, learned Senior counsel appearing for the petitioner submitted that the Meghalaya Board of Revenue disposed of the Revision Petition vide order dated 23.01.2015. Thereafter, the petitioner filed petition seeking review of the judgment dated 15.12.2015 of the Meghalaya Board of Revenue under Section 7 of Assam Board of Revenue Act, 1962 (as adopted by Meghalaya) on 01.02.2016. The review petition was not taken up for consideration for quite some time. The petitioner filed WP(C) No. 126 of 2016 with the prayer to issue a writ of mandamus directing the Board of Revenue to consider the same. After sever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand excluded. 7. Dr. B.P. Todi, learned Senior Counsel, argued that since the petitioner initially filed a writ petition and on objection being raised by the respondents about its maintainability, he withdrew the same to file the present Revision Petition, the period consumed by the petitioner in filing writ petition and also the period which the Board of Revenue itself consumed in deciding the revision, would be liable to be excluded. He relied on the judgements of the Supreme Court in the case of State of Manipur Ors. v. All Manipur Regular Post vacancies S.T.A. Ors.:(1997) 10 SCC 385, Mohd. Unaramuddin v. State of Andra Pradesh: (1994) 5 SCC 118 and Colgate Palmotive Co. V. Hindustan Rimmer Ors:(1994) SCC 364 to submit that according to the law laid down therein, the period from the date of pronouncement of judgment till disposal of review petition is liable to be excluded in computing the period of limitation for further filing of appeal/revision. Even then, the petitioner by way of abundant caution filed an application for condonation of delay. 8. Per contra, Mr. A. Kumar learned Advocate General opposed the application for condonation of delay and argued that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the Limitation Act are necessarily excluded, the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. It was further held that where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, those provisions and scheme of special law exclude their operation. Learned Advocate General further submitted that the Supreme Court in Patil Brothers Vs. State of Assam Others, (supra), held that the Court cannot interpret the law in such a manner so as to read in the Act an inherent power of condoning delay by invoking Section 5 of the Limitation Act, 1963 and to supplement the provisions of the VAT Act which excludes the operation of Section 5 by necessary implication. It is argued that the Assam VAT Act and Meghalaya VAT Act, are in para materia with each other and therefore, ratio of the judgement of the Supreme Court in Patel Brothers v. State of Assam Ors.: (20017) 2 SCC 350 would apply to present case with full force. 10. Learned Advocate General further argued that Section 69 the Act of 2003 provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended to be complete code in themselves. The provisions relating to appeal, revision and review are contained in Chapter VII of the Act of 2003. Section 65 thereof provides for remedy of appeal to the assessee against the order of assessment before the Prescribed Authority within 45 days from the receipt of a notice of demand in respect thereof but with the stipulation that appeal may be entertained within such further period as may be allowed by the said authority for the cause shown to his satisfaction. Similarly, Section 66(1) of the Act of 2003 provides that the Commissioner may on his own motion, revise any assessment made or order passed by a person appointed under sub-section (1) of section 25 to assist him. Sub-section (2) of Section 66 also provides the remedy of revision to the aggrieved person against the assessment made or any order passed by a person appointed under Section 25(1) of the Act before the Commissioner, subject to such rules as may be prescribed. Section 67 of the Act of 2003, inter alia, confers power on the person appointed under Section 25(1) of the Act, the Appellate Authority and the Revisional Authority, to review their order either on their own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgement of the Appellate Authority and the Revisional Authority, within sixty days after being served with notice of the impugned decision, also confers power on the Appellate Tribunal to admit the appeal filed after sixty days if it is satisfied that the appellant had sufficient reason for not filing the appeal within the time prescribed under sub-section (1), provided such appeal is filed within one year. 16. Significantly enough, neither Section 66 nor Section 67 of the Act of 2003 prescribe for any definite period of limitation within which the order can be, revised or reviewed, suo motu or on the application filed by an affected party. Section 66, which provides for remedy of revision, suo motu or at the instance of the aggrieved party, against the order of assessment or order passed by a person appointed under Section 25(1) of the Act, does not give any period of limitation within which such revision can be entertained. Similarly, Section 67 of the Act of 2003, which confers powers on the person appointed under Section 25(1), the Appellate Authority and Revisional Authority, for reasons to be recorded in writing, to review any order passed by any of them, either on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the date the assessee is notified of the decision. This leads to two conclusions; firstly, the Act of 2003 is a complete Code by itself and secondly, applicability of Section 5 of the Limitation Act to Revision Petition filed under Section 70 of the Act of 2003 stand excluded by necessary implication. 17. Matter can be approached from another angle as well. Section 110 of the Act of 2003 specifically provides for applicability of only two provisions of the Limitation Act, namely, Sections 4 and 12, in computing the period of limitation under Chapter X of the Act of 2003. Had the legislature intended to extend the other provisions of the Limitation Act, including Section 5 thereof, to Chapter VII of the Act of 2003, it would have certainly indicated so. It may be significant to note at this stage that Section 110 of the Act of 2003 was amended by the Meghalaya Commencement Value Added Tax (Amendment) Bill, 2005, which was published in the Meghalaya Extra Ordinary issue of the Gazette dated 30th April, 2005, to substitute Chapter VI by Chapter X. It is thus evident that neither at the time of framing the original enactment when Sections 4 and 12 of the Limitation Act were applie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Limitation Act.It is sufficient if on a consideration of the language of its provisions relating to limitation, the intention to exclude can be necessarily implied. As has been said in Hukumdev Narain Yadav v. Lalit Narain Mishra reported in (1974) 2 SCC 133 (SCC p. 146, para 17). If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. 20. The Supreme Court in Gopal Sardar Vs. Karuna Sardar, (2004) 4 SCC 252, was dealing with a case where the appellant tried to take forcible possession of the plot adjoining to the east of his land. The case of the respondent was that she came to know on 18.09.1985 that the appellant had purchased the said plot on 17.08.1979. She filed an application under Section 8 of the West Bengal Land Reforms Act, 1955 in the Munsif Court claiming right of pre-emption on the basis of vicinage being the owner of adjoining plots of land purchased on 20.07.1966 and 01.06.1981.The objection was raised by the appellant that the application was time barred. The Munsif Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The right conferred under Section 8 is a statutory right. Even otherwise, in our view, the position as regards to applicability of Section 5 of the Limitation Act to an application under Section 8 of the Act does not get altered. As already stated above, the Act is a self- contained Code inasmuch as the Act provides to enforce the rights of pre-emption, forum is provided, procedure is prescribed, remedies including the appeals and revisions are provided, penalties are indicated for non-compliance of the orders and powers are given for restoration of land. Further period of limitation is also specifically prescribed to make an application under Section 8 of the Act and for preferring appeals or revisions under the provisions of the Act. All these and few other provisions are clear enough to indicate that the Act is a complete Code in itself dealing with the rights of pre-emption. Second proviso to Section 14H specifically provides for the application of Section 5 of the Limitation Act in the matter of preferring an appeal or revision. Section 14-O(1) specifically enables the appellate authority to allow to prefer an appeal even after the expiry of the period of limitation prescrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted by the phrase Munsif having territorial jurisdiction by the aforementioned amendment. Even after this amendment when an application is required to be made before the Munsif Court, no amendment was made to Section 8 of the Act either to apply Section 5 of the Limitation Act or its principles so as to enable a party to make an application after the expiry of the period of limitation prescribed on showing sufficient cause for not making an application within time. The Act is of 1955 and for all these years, no provision is made under Section 8 of the Act providing for condonation of delay. Thus, when Section 5 of the Limitation Act is not made applicable to the proceedings under Section 8 of the Act unlike to the other proceedings under the Act, as already stated above, it is appropriate to construe that the period of limitation prescribed under Section 8 of the Act specifically and expressly governs an application to be made under the said Section and not the period prescribed under Article 137 of the Limitation Act. 21. Ratio of the aforesaid judgement in Gopal Sardar, supra, would apply to the present case with full force both for proposition of law that the Act of 2003 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the provisions of Sections 4 to 25 of the Limitation Act, including Section 5. The word 'exclusion' also includes 'exclusion by necessary implication'. The provision prescribing a time limit for filing a petition for objection under Section 4(2) of the Act is mandatory and there is no scope for reading in a power of court to dispense with the time limit on the basis of any principle of interpretation of statutory interpretation. The Supreme Court also in this respect considered the provisions of Section 10(3) of the Act of 1992, which provided for an appeal to the Supreme Court from any judgement, sentence or order of the Special Court within a period of 30 days from the date of such judgement, however, proviso to Section 10(3) of the Act empowered the Supreme Court to entertain the appeal even after expiry of the period of limitation of thirty days if the Court is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of limitation. But not providing similar power to condone delay under Section 4(2), the Parliament has consciously excluded such power of the Court in relation to Section 4(2) of the Act of 1992, held the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 5 of the Limitation Act, 1963 were specifically excluded, the High Court would be competent to condone the delay by recourse to Section 5 of the Limitation Act, 1963. The Supreme Court, while repelling the argument, held as under:- 30. In the earlier part of our order, we have adverted to Chapter VI- A of the Act which provides for appeals and revisions to various authorities. Though Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to the Appellate Tribunal. Also an additional period of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court under Section 35-G and reference application to the High Court under Section 35-H, Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act. 31. In this regard, it is useful to refer to a recent decision of this Court in Punjab Fibres Ltd. [(2008) 3 SCC 73] The Commissioner of Customs, Central Excise, Noida was the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eficiency, if it intends to give power to the High Court to condone the delay in filing Revision Petition under Section 81 of the VAT Act. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. The Supreme Court in Patel Brothers, supra, also held that scrutiny of the scheme of VAT Act goes to show that it is a complete code not only laying down the forum but also prescribing the time limit within which each forum would be competent to entertain the appeal or revision. Observations of the Supreme Court in para 20 of the report are apt to quote:- 20. Thus, the approach which is to be adopted by the Court in such cases is to examine the provisions of special law to arrive at a conclusion as to whether there was legislative intent to exclude the operation of Limitation Act. In the instant case, we find that Section 84 of the VAT Act made only Sections 4 and 12 of the Limitation Act applicable to the proceedings under the VAT Act. The apparent legislative intent, which can be clearly evinced, is to exclude othe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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