TMI Blog2024 (5) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... Division Bench of this Court, while considering the scope and ambit of Section 107 of the said Act and the applicability of Section 5 of the Limitation Act 1963 on the basis of the provisions contained in Section 29(2) of the Limitation Act 1963 and by placing reliance on the judgment delivered by the Hon ble Supreme Court in the case Superintending Engineer/Dehar Power House Circle Bhakra Beas Management Board (PW) Slapper and another versus Excise and Taxation Officer Sunder Nagar/Assessing Authority [ 2019 (11) TMI 6 - SUPREME COURT ], had concluded that in absence of non obstante clause rendering Section 29(2) of the Limitation Act 1963, non-applicable and in absence of specific exclusion of Section 5 of the Limitation Act, 1963, it wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 107 of the said Act. Since, the appeal was filed beyond the period of limitation the same was accompanied by an application under Section 5 of the Limitation Act, 1963. The appellate authority, however, appears to have rejected the said application for condoning the delay by its order dated 28th February 2024 and had consequentially disposed of the appeal. 3. Challenging the aforesaid rejection of the application for condonation of delay the present writ application has been filed. 4. Mr. Dutta, learned advocate appearing for the petitioner by drawing attention of this Court to the provisions of Section 107(4) of the said Act submits that since the appellate authority was competent to entertain the appeal beyond one month of the time p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the appellate authority in refusing to condone the delay and in the facts of the case, direct the appellate authority to hear out the appeal by condoning the delay. 6. Affidavit-of-service filed in Court today is taken on record. 7. Mr. Agarwal, learned advocate appearing for the State respondents, on the other hand by drawing attention of this Court to the provisions of Section 107(4) of the said Act submits that there is no power available to the appellate authority to condone the delay beyond the period of one month from the prescribed period of 90 days, provided for in preferring the appeal. According to him, the said Act is a self-contained code and excludes the applicability of the provisions Section 5 of the Limitation Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that an identical issue had fell for consideration before the Hon ble Division Bench of this Court in the case of S.K. Chakraborty Sons (supra). The Division Bench of this Court, while considering the scope and ambit of Section 107 of the said Act and the applicability of Section 5 of the Limitation Act 1963 on the basis of the provisions contained in Section 29(2) of the Limitation Act 1963 and by placing reliance on the judgment delivered by the Hon ble Supreme Court in the case Superintending Engineer/Dehar Power House Circle Bhakra Beas Management Board (PW) Slapper and another versus Excise and Taxation Officer Sunder Nagar/Assessing Authority (2020) 17 SCC 692, had concluded that in absence of non obstante clause rendering Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... useful purpose will be served to remand the matter as regards consideration of the application under Section 5 of the Limitation Act, 1963 to the appellate authority, I am of the view that such issue needs to be considered by this Court. Having considered the application for condonation of delay, I find that the explanation provided by the petitioner in the application under Section 5 of the Limitation act is satisfactory and delay has been sufficiently explained. Having regard thereof the delay in preferring the appeal under Section 107 of the said Act is condoned and appeal is restored to its original file and number. 16. The appellate authority is directed to hear out and dispose of the appeal on merits preferably within a period of one ..... X X X X Extracts X X X X X X X X Extracts X X X X
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