2023 (12) TMI 743 - HC - VAT and Sales Tax

Commissioner's GST reference application dismissed for missing mandatory 90-day deadline under Section 12(D)

Commissioner State Taxes, Jammu & Kashmir Government, Deputy Commissioner Sales Tax (Appeals), Assessing Authority, Commercial Taxes Circle “L”, Excise & Taxation Complex, Jammu Versus M/s. 92. 7 FM C/o Adlab Films Pvt. Ltd., J&K Sales Tax (Appellate) Tribunal, Excise & Taxation Complex, Rail Head, Jammu, Through its Ld. Judicial Member

J&K and Ladakh HC dismissed application for condonation of delay in GST reference filing. Commissioner failed to file reference within mandatory ... Application for condonation of delay dismissed - provisions of Section 12-B of the J&K GST Act, 1962 ignored, which provide that the provisions of Sections 5 & 12 of the Limitation Act, Samvat 1995 shall apply to the appeals, revisions, filed under this Act before Appellate, Reviewing Authorities or the Tribunals - HELD THAT:- A conjoint reading of Section 12(D) along with first proviso shows that the maximum time within which reference could be filed by the dealer or the Commissioner should not exceed 90 days (including the grace period of 30 days) from the date of communication of appellate order. Admittedly, the order passed by the appellate authority is 22.02.2022 and indisputably the same was communicated to the Commissioner on 29.02.2022 as per the own admission of petitioners in the writ petition. Therefore, 29.02.2022 is the date which is to be taken for consideration for the purposes of calculation of period of limitation for filing reference. The Commissioner, therefore, was required to file reference within 60 days, i.e., on or before 29.04.2022 or before 29.05.2022 (including the extended/grace period of 30 days subject to sufficient cause). However, no such reference was filed within 90 days; as such it has become barred by Section 12(d) of the J&K GST Act. Thus, the order passed by the appellate authority has attained finality because in view of the provisions of Section 12(d) of the J&K GST Act, which is a special Act, has excluded the applicability of Section 5 of the Limitation Act. The order of learned Tribunal upheld - petition dismissed. ISSUES PRESENTED AND CONSIDERED 1. Whether an application under Section 12-D (reference to High Court of question(s) of law) filed after the statutorily prescribed period (60 days with a proviso allowing a further period not exceeding 30 days) can be condoned by the Tribunal beyond the maximum 90-day period where Section 5 of the Limitation Act is not applicable. 2. Whether the provisions of Sections 5 and 12 of the Limitation Act apply to an application for reference under Section 12-D of the J&K General Sales Tax Act, 1962, or whether the specific provisions of Section 12-D itself govern the limitation and bar relief under Section 5. 3. The correct computation of limitation for filing a reference under Section 12-D from the date of communication of the appellate order and the consequence of non-filing within the statutory maximum period - whether the appellate order attains finality. 4. Whether the Tribunal erred in dismissing the petition for condonation of delay as not maintainable where a prior High Court direction had provided for exclusion of time spent in earlier proceedings while calculating limitation for filing reference. ISSUE-WISE DETAILED ANALYSIS Issue 1: Whether the Tribunal may condone delay beyond the statutory maximum period under Section 12-D (60 days + up to 30 days). Legal framework: Section 12-D prescribes that an aggrieved person or the Commissioner may, within sixty days from communication of the Tribunal's order, file an application requiring reference to the High Court of any question of law; Proviso (1) to Section 12-D permits allowance of the application within a further period not exceeding thirty days if prevented by sufficient cause. Interpretation and reasoning: A conjoint reading of Section 12-D and its proviso yields a maximum permissible period of ninety days (60 + up to 30) for filing the reference. The Tribunal's power to condone delay is thus circumscribed by the statutory maximum, and it cannot permit filing beyond ninety days because the provision itself limits the extension. Precedent Treatment: No contrary binding precedent was applied or followed in the judgment; the Court treated Section 12-D as a self-contained limitation scheme excluding broader extension powers. Ratio vs. Obiter: Ratio - the Tribunal cannot condone delay beyond the 90-day maximum fixed by Section 12-D; such limitation is mandatory. Conclusion: The Tribunal correctly held that it could not condone filing beyond the statutory maximum period prescribed by Section 12-D. Issue 2: Applicability of Sections 5 and 12 of the Limitation Act to applications under Section 12-D. Legal framework: Section 12-B of the J&K GST Act provides that the provisions of Sections 5 and 12 of the Limitation Act shall apply to appeals and revisions before Appellate, Reviewing Authorities or Tribunals under the Act. Section 12-D deals explicitly with references to the High Court from Tribunal orders. Interpretation and reasoning: Section 12-B expressly brings Sections 5 and 12 of the Limitation Act into play for appeals/revisions, but it does not mention references under Section 12-D. Where a statute creates a specific limitation regime for a particular remedy (here, reference under Section 12-D), that special provision governs and excludes the application of Section 5 for the purpose of enlarging the period. The Court reasoned that because Section 12-D itself prescribes the limitation and the proviso confines any extension to thirty days, the general provision (Section 5 Limitation Act) is inapplicable to extend the time for filing references beyond the special maximum period. Thus judgments relying on Section 5 were inapplicable to this context. Precedent Treatment: The Court distinguished authorities invoking Section 5, on the ground that Section 12-D constitutes a special statutory scheme which excludes the general extension power. Ratio vs. Obiter: Ratio - where a special statutory limitation exists for a particular remedy, the general extension power of Section 5 Limitation Act does not apply to enlarge that special period. Conclusion: Sections 5 and 12 of the Limitation Act do not apply to extend the time for filing references under Section 12-D; the special limitation in Section 12-D governs. Issue 3: Computation of limitation from date of communication and the consequence of non-filing within the statutory period. Legal framework: Limitation for filing a reference under Section 12-D runs from the date of communication of the Tribunal's order; the statute prescribes 60 days plus a possible further 30 days for sufficient cause. Interpretation and reasoning: The judgment took the communicated date as the triggering event for computation. Applying the statutory formula, the Court calculated the outer limit and concluded that failure to file within that maximum period results in the application being barred and the appellate order becoming final. The Court rejected equitable or other enlargement where the statutory maximum is exceeded. Precedent Treatment: No specific precedents were relied upon that alter the rule on computation; the Court followed the plain statutory scheme. Ratio vs. Obiter: Ratio - the date of communication is the date from which the 60-day period (and the additional 30-day grace, if allowed) runs; non-filing within the statutory maximum results in finality of the appellate order. Conclusion: The reference had become time-barred because it was not filed within the statutory maximum period computed from the date of communication; hence the appellate order attained finality. Issue 4: Effect of a prior High Court direction to exclude time spent in earlier proceedings on computation of limitation for reference under Section 12-D. Legal framework: The Court's earlier order had directed exclusion of time spent before the High Court in prior related proceedings while calculating limitation for filing reference before the Tribunal. Interpretation and reasoning: The judgment indicates that the Tribunal's decision focused on statutory limitation and the date of communication in the specific instance. Although the petitioners relied on the prior direction to exclude certain periods while computing limitation, the Court observed that the applicable statutory provision (Section 12-D) and the concrete dates of communication/control determined the limiting period. The Court accepted the Tribunal's computation and concluded that the reference was nevertheless beyond the statutory maximum. The Court did not find the Tribunal's failure to apply the earlier direction to be sufficient to overturn its conclusion that the reference was time-barred under Section 12-D. Precedent Treatment: The Court treated the prior High Court direction as not altering the statutory maximum period prescribed under Section 12-D in the facts of this matter; any exclusion of time did not operate to render the later filing within the 90-day maximum in the presented chronology. Ratio vs. Obiter: Ratio (limited) - a direction to exclude certain periods will not override the statutory maximum period if, on correct application of the communication date and excluded periods, the filing still falls outside the prescribed 60 + 30-day window. Conclusion: The Tribunal did not err in dismissing the application for condonation as not maintainable despite the prior direction to exclude time spent; on computation as accepted, the reference remained barred. Overall Conclusion The Tribunal correctly dismissed the application for condonation of delay as not maintainable because the reference under Section 12-D was not filed within the maximum statutory period of 90 days from communication of the appellate order; Sections 5 and 12 of the Limitation Act do not avail to extend that special statutory period, and the appellate order accordingly attained finality.