REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 49-50 OF 2017
(ARISING OUT OF SLP (C) NOS. 21865-21872 OF 2016)
|M/S PATEL BROTHERS |.....APPELLANT(S) |
|VERSUS | |
|STATE OF ASSAM AND ORS. |.....RESPONDENT(S) |
J U D G M E N T
A.K. SIKRI, J.
Leave granted.
2. The question of law which has fallen for determination in these
appeals is 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 (hereinafter
referred to as the 'VAT Act').
In order to decide this question, which is a pure question of law, it is
not necessary to state the facts in greater detail. The seminal facts
which require reproduction are mentioned below:
The appellant was running a business of purchasing tea and is a
registered dealer under the Assam General Sales Tax Act, 1993 as well as
the VAT Act and the Central Sales Tax Act, 1956. Based on the sales of his
business, the appellant had submitted the declaration in Form ‘C’ for the
years 1998-1999, 1999-2000, 2000-2001 and 2001-2002 reflecting the value of
sales. Based on the representation made by the appellant, Respondent No.
2/Superintendent of Tax allowed full exemption of sales tax as per Section
8(5) of Central Sales Tax Act, 1956. But, the information given by the
appellant turned out to be false and as a result of which Respondent No. 2
passed an order dated 29.06.2004 reducing the exemption granted to the
petitioner for the year 19998-99 along with imposing penalty. Similar
orders of re-assessment were passed in respect of the other assessment
years giving rise to the connected proceedings. Aggrieved by the order
dated, 29.06.2004, the appellant preferred appeals before Respondent No.
3/Appellate Authority along with applications for the stay of the demand.
By order dated 29.07.2005, Respondent No. 3 had directed the appellant to
deposit 25% of the demanded dues within 30 days and stayed rest of the
demand. The appellant preferred appeals before the Assam Board of
Revenue/Appellate Tribunal against the order dated 29.07.2005, which was
dismissed by the order dated 26.08.2008. A review application filed
against the aforesaid order came to be dismissed by the Appellate Tribunal
by the order dated 27.08.2013. Aggrieved, appellant filed Revision
Petitions under section 81(1) of the VAT Act.
Section 81 of the VAT Act also prescribes a limitation period of 60 days
within which such revision petition is to be preferred to High Court.
Since there was a delay of 335 days in filing these revision petitions,
these petitions were filed along with applications under Section 5 of the
Limitation Act, 1963, seeking condonation of delay. The High Court has
dismissed the applications for condonation of delay holding that provisions
of Section 5 of the Limitation Act, 1963 are not applicable. For this
purpose, the High Court has referred to Section 84 of the VAT Act which
makes provisions of Sections 4 and 12 of the Limitation Act, 1963 to such
petitions. On that basis, it is held by the High Court that since only
Sections 4 and 12 of the Limitation Act, 1963 are made specifically
applicable to these proceedings, by necessary implication Section 5 of the
Limitation Act stands excluded.
It was argued by Mr. Chowdhury, learned counsel appearing for the
appellant, that the approach of the High Court in dealing with the
provisions of VAT Act and applicability of Limitation Act, 1963 to such
proceedings was faulty inasmuch as the High Court did not take note of and
discussed other provisions of the VAT Act and also failed to give due
weightage to Section 29(2) of the Limitation Act, 1963.
In the first instance, he referred to Section 79 of the
VAT Act which is a provision relating to appeals to the Appellate
Authority. As per Section 79(1) of the VAT Act, appeal against the order
of the taxing authority can be filed with the appellate authority within 60
days from the date of receipt of such order of the taxing authority. Sub-
section (2) of Section 79 of the VAT Act empowers the appellate authority
to entertain the appeal even beyond 60 days, provided it is presented
within a further period of 180 days, if the appellate authority is
satisfied that the appellant was prevented by sufficient cause from
presenting the appeal within the stipulated period of 60 days[1].
The learned counsel next referred to Section 80 of the VAT Act[2] which
deals with appeals to the Appellate Tribunal inter alia against the orders
of the Appellate Authority. Here also, period of 60 days for preferring
such an appeal is provided under sub-section (3) of Section 80 of the VAT
Act and proviso to sub-section (3) empowers the Appellate Tribunal to
condone the delay, if the appeal is preferred within a further period of
120 days, on sufficient cause being shown for not filing the appeal within
60 days of limitation prescribed. The learned counsel contrasted the
aforesaid provisions of Sections 79 and 80 with
Section 81[3] of the VAT Act and pointed out that whereas there was
specific provision for condonation of delay in filing appeals under
Sections 79 and 80 of the VAT Act, no such equivalent provision was made in
Section 81 of the VAT Act. As per Section 81 of the VAT Act, revision can
be preferred to the High Court against the order of the Appellate Tribunal
within 60 days. However, there is no provision giving specific power to
the High Court to condone the delay if the revision is preferred beyond 60
days. As per the learned counsel, the reason for not providing such a
provision was that provisions of Limitation Act, 1963 including Section 5
thereof were applicable.
Insofar as Section 84 of the VAT Act[4] is concerned, it was submitted that
Sections 4 and 12 of the Limitation Act, 1963 were made applicable for
specific purpose of computing the period of limitation under the said
Chapter and High Court committed a grave error while holding that because
of the aforesaid provision only Sections 4 and 12 of the Limitation Act,
1963 were made applicable to the VAT Act thereby excluding other provisions
of the Act.
For this purpose, the learned counsel relied upon Section 29(2) of the
Limitation Act, 1963[5] which makes provisions contained in Sections 4 to
24 (inclusive) of the Limitation Act, 1963 applicable in case of suit,
appeal or application under any special or local law, where these
provisions are not expressly excluded by such special or local law.
It was argued that in the absence of any provision expressly excluding the
applicability of Sections 4 to 24 of the Limitation Act, 1963, those
Sections were applicable qua revision petitions filed under Section 81 of
the VAT Act and, therefore, Section 5 of the Limitation Act, 1963 was also
applicable to such proceedings. To placate his aforesaid submissions, the
learned counsel relied upon the judgment of this Court in the case of Mangu
Ram v. Municipal Corporation of Delhi & Anr.[6]. In that case, special
leave petitions were filed against the condonation of delay to the
application for grant of special leave under Section 417, Cr.P.C., 1898
against acquittal of the petitioners by the trial court, in spite of the
mandatory period of limitation provided in sub-section (4) of Section 417.
Question arose whether in the case of Kaushalya Rani v. Gopal Singh[7],
which held Section 417, Cr.P.C., 1898 a special law and excluded
application of Section 5 on a construction of Section 29(2)(b) of the old
Act of 1908 applied under the corresponding provision of Limitation Act,
1963 which governed the case. The Court held that since the case was
governed by Limitation Act, 1963, judgment in Kaushalya Rani case did not
apply. For applicability of the Limitation Act, 1963 to such proceedings,
the Court referred to Section 29(2) of the Limitation Act, 1963 holding
that there is an important departure made by the Limitation Act, 1963
insofar as the provision contained in Section 29, sub-section (2), is
concerned. Under the Indian Limitation Act, 1908, clause (b) to sub-
section (2) of Section 29 provided that for the purpose of determining any
period of limitation prescribed for any suit, appeal or application by any
special or local law the application of Section 5 was in clear and specific
terms excluded. But under Section 29(2) of Act, the provisions of Section
5 shall apply in case of special or local law to the extent to which they
are not expressly excluded by such special or local law. Since under the
Limitation Act, 1963, Section 5 is specifically made applicable by Section
29 (2), it is only if the special or local law expressly excludes the
applicability of Section 5 that it would stand displaced. The Court held
that there is nothing in Section 417(4), Cr.P.C., which excludes the
application of Section 5 of Limitation Act, 1963.
Learned counsel for the appellant also referred to the case of State of
Madhya Pradesh & Anr. v. Anshuman Shukla[8]. In that case, question of
applicability of Section 5 of the Limitation Act arose in relation to
revision petition that can be preferred under Section 19 of the M.P.
Madhyastham Adhikaran Adhiniyam, 1983 (as it stood prior to its amendment
in 2005). The Court held that since unamended Section 19 did not contain
any express rider on power of the High Court to entertain applications for
revision after expiry of prescribed limitation thereunder, provisions of
Limitation Act, 1963 would become applicable vide Section 29(2) thereof.
It further held that as the High Court was conferred with suo moto power
under Section 19 of Adhiniyam, 1983 to call for record of an award at any
time, there was no legislative intent to exclude the applicability of
Section 5 of the Limitation Act, 1963.
Mr. Nalin Kohli, learned senior counsel appearing for the respondents, on
the other hand, submitted that the High Court had exhaustively dealt with
the issue and rightly found that since Section 84 of the VAT Act confined
the applicability of Limitation Act only in respect of Sections 4 and 12
thereof to the proceedings under the said Chapter, by necessary implication
the other provisions of the Limitation Act, 1963 including Section 5
thereof stood excluded. He submitted that for the purpose of finding
whether other provisions are excluded or not, the focus should be on the
scheme of the special law as laid down in Hukumdev Narain Yadav v. Lalit
Narain Mishra[9] wherein it was held that even if there exists no express
exclusion in the special law, the Court has right to examine the provisions
of the special law to arrive at a conclusion as to whether the legislative
intent was to exclude the operation of the Limitation Act. According to
him, Section 84 of the VAT Act clearly depicted such a legislative intent.
After examining the matter in the light of law laid down in various
judgments cited by both the parties, we are of the view that the High Court
has given correct interpretation to the provisions of Section 81 of the VAT
Act, when this provision is read along with Section 84 thereof.
In the case of Commissioner of Customs and Central Excise v. Hongo India
Private Limited & Anr.[10], the question that fell for determination was
that as to whether the High Court had power to condone the delay in
presentation of the reference application under unamended Section 35-H(1)
of the Central Excise Act, 1994 beyond the period prescribed by applying
Section 5 of the Limitation Act. Unamended Section 35-H dealt with
reference application to the High Court. Under sub-section (1) thereof,
such reference application could be preferred within a period of 180 days
of the date upon which the aggrieved party is served with notice of an
order under Section 35-C of the Central Excise Act. There was no provision
to extend the period of limitation for filing the application to the High
Court beyond the said period and to condone the delay. Pertinently, under
the scheme of the Central Excise Act as well, in case of appeal to the
Commissioner under Section 35 of the Act, which should be filed within 60
days, there was a specific provision for condonation of delay upto 30 days
if sufficient cause is shown. Likewise, appeal to the Appellate Tribunal
could be filed within 90 days under Section 35-B thereof and sub-section
(5) of Section 35-B gave power to the Appellate Tribunal to condone the
delay irrespective of the number of days, if sufficient cause is shown.
Further, Section 35-EE provided 90 days time for filing revision by the
Central Government and proviso thereto empowers the revisional authority to
condone the delay for a further period of 90 days. However, when it came
to making reference to the High Court under Section 35-G of the Act, the
provision only prescribed the limitation period of 180 days with no
further clause empowering the High Court to condone the delay beyond the
said period of 180 days. It was, thus, in almost similar circumstances,
the judgment was rendered by this Court. The categorical opinion of the
Court was that in the absence of any such power, the High Court did not
have power to condone the delay. In that case also, provisions of Section
29(2) of the Limitation Act, 1963 were pressed into service. But this
argument was rejected in the following manner:
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 appellant in this case. While considering the
very same question, namely, whether the High Court has power to condone the
delay in presentation of the reference under Section 35-H(1) of the Act,
the two-Judge Bench taking note of the said provision and the other related
provisions following Singh Enterprises v. CCE [(2008) 3 SCC 70] concluded
that: (Punjab Fibres Ltd. case [(2008) 3 SCC 73] , SCC p. 75, para 8)
“8. … the High Court was justified in holding that there was no power for
condonation of delay in filing reference application.”
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 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.”
In the process, the Court also explained the expression 'expressly
excluded' appearing in Section 29(2) of the Limitation Act, 1963 in the
following manner:
“34. Though, an argument was raised based on Section 29 of the Limitation
Act, even assuming that Section 29(2) would be attracted, what we have to
determine is whether the provisions of this section are expressly excluded
in the case of reference to the High Court.
35. It was 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. 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 relating to filing of reference application to the High Court.”
The aforesaid judgment is a complete answer to the
arguments of the appellant.
It may be relevant to mention here that after the judgment in Hongo India
Private Limited & Anr., Section 35-H of the Central Excise Act, 1994 was
amended by the Parliament by Act 32 of 2003 with effect from 14.05.2003
giving power to the High Court to condone the delay by inserting sub-
section (2A). It is, therefore, for the legislature to set right the
deficiency, 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.
Argument predicated on 'no express exclusion' loses its force having regard
to the principle of law enshrined in Hukumdev Narain Yadav. Therein, the
Court made following observations while examining whether the Limitation
Act would be applicable to the provisions of the Representation of the
People Act or not:
“17. … 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 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 view, 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.”
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 other provisions, 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.
Judgment in the case of Mangu Ram would not come to the aid of the
appellant as the Court found that there was no provision under the Cr.P.C.
from which legislative intent to exclude Section 5 of the Limitation Act
could be discerned and, therefore, Section 29(2) of the Limitation Act was
taken aid of. Similar situation prevailed in Anshuman Shukla's case. On
the contrary, in the instant case, a 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. The underlying object of the Act appears
to be not only to shorten the length of the proceedings initiated under the
different provisions contained therein, but also to ensure finality of the
decision made there under. 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,
unhesitantly 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.
The High Court has rightly pointed out the well settled principle of law
that “the court cannot interpret the statute the way they have developed
the common law ‘which in a constitutional sense means judicially developed
equity'. In abrogating or modifying a rule of the common law the court
exercises the same power of creation that built up the common law through
its existence by the judges of the past. The court can exercise no such
power in respect of statue, therefore, in the task of interpreting and
applying a statue, Judges have to be conscious that in the end the statue
is the master not the servant of the judgment and no judge has a choice
between implementing it and disobeying it.” What, therefore, follows is
that the court cannot interpret the law in such a manner so as to 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 VAT Act
which excludes the operation of Section 5 by necessary implications.
We, thus, do not find any infirmity in the judgment rendered by the High
Court. The present appeals are devoid of any merit and are, accordingly,
dismissed.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ABHAY MANOHAR SAPRE)
NEW DELHI;
JANUARY 04, 2017.
-----------------------
[1] Relevant portion of Section 79 of the VAT Act reads as under: “79.
Appeals to the appellate authority: (1) Any person aggrieved by an order
passed under the Act by a taxing authority lower in rank than a Deputy
Commissioner of Taxes, may appeal to the Appellate Authority, in the manner
as may be prescribed, within sixty days from the date of receipt of such
order.
(2) Where the Appellate Authority is satisfied that the appellant
was prevented by sufficient cause from presenting the appeal within the
aforesaid period of sixty days, it may admit an appeal after the expiry of
the said period provided it is presented within a further period of one
hundred eighty days”
[2] 80. Appeals to the Appellate Tribunal: (1) Any person aggrieved
by any of the following orders may appeal to the Appellate Tribunal
against such order,-
(a) an order passed by the Appellate Authority under Section 79, and
(b) an order passed by an authority not below the rank of Deputy
Commissioner of Taxes.
(2) omitted.
(3) Every appeal under sub-section (1) shall be filed within sixty
days of the date on which the order sought to be appealed against is
communicated to the person;
Provided that the Appellate tribunal may admit an appeal after the
expiry of sixty days if he is satisfied that the Appellant had sufficient
reasons for not filing the appeal within the aforesaid time, if, it is
within a further period of one hundred twenty days.
[3] “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.”
[4] Section 84 of the VAT Act reads as under: “84. Application of
Section 4 and 12 of Limitation Act, 1963 : In computing the period of
limitation under this chapter, the provisions of Section 4 and 12 of the
Limitation Act, 1963 shall, so far as may be, apply.”
[5] Section 29(2) of the Limitation Act, 1963 reads as under: “29(2).
Where any special or local law prescribes for any suit, appeal or
application a period of limitation different from the period prescribed by
the Schedule, the provisions of section 3 shall apply as if such period
were the period prescribed by the Schedule and for the purpose of ?
