TaxTMI 
TaxTMI 
TaxTMI 
2007 (11) TMI 563
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....bunal to frame the questions of law and refer them to this court. By order dated June 15, 2005, the Tribunal rejected the said Reference Application No. 122 of 2002. The applicant aggrieved by the said order has preferred this application to this court. The application has been filed beyond the period of 90 days as required by the first proviso to sub-section (1) of section 61 of the Bombay Sales Tax Act, 1959, which hereinafter shall be referred to as the Act. There is a motion for condonation of delay. The respondents have raised a preliminary objection to the court exercising jurisdiction to condone the delay. It is their submission that as there is no power in this court to condone the delay in making the application under the provisions of the Bombay Sales Tax Act, 1959 (hereinafter referred to as, "the Act"), the same is not maintainable and consequently has to be dismissed. The applicant, on the other hand, contends that the application is to the "court" and hence the provisions of section 5 of the Limitation Act, 1963 will apply. The question for consideration is, whether section 5 of the Limitation Act would be applicable, when an application is moved under the first pr....
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....f any person to pay tax or penalty or interest or to forfeiture of any sum or which affects the recovery from any person of any amount under section 39, that person, the Additional Commissioner of Sales Tax having jurisdiction over the whole of the State or the Commissioner, may by application in writing (accompanied, where the application is made by that person, by a fee of one hundred rupees) require the Tribunal to refer to the High Court any question of law arising out of (1)Here italicised. such order; and where the Tribunal agrees, the Tribunal shall, as soon as may be after the receipt of such application, draw up a statement of the case and refer it to the High Court: Provided that, if in the exercise of its power under this subsection the Tribunal refuses to state the case which it has been required to do, on the ground that no question of law arises, that person, the Additional Commissioner of Sales Tax having jurisdiction over the whole of the State, or as the case may be, the Commissioner, may, within ninety days of such refusal, either withdraw his application (and if he does so any fee paid shall be refunded), or apply to the High Court against such refusal: Provide....
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....n such proceedings, the application of section 5 of the Limitation Act is expressly excluded. Section 60 of the Act of 1959 confers power for extension of period of limitation only on an appellate authority while admitting an appeal under section 55. Considering the language of section 60 and the object behind enacting it, an inference can be drawn that section 60 was enacted to exclude the application of section 5 of the Limitation Act. By necessary implication, therefore, it will also impliedly exclude the application of section 5 of the Limitation Act to an application for reference under the Act submitted either to the Tribunal or the court under the proviso to section 61. Considering the specific provisions of the special law, the ratio of the Supreme Court judgment in the case of Union of India v. Popular Construction Co. [2001] 8 SCC 470 and the decision in the case of Commissioner of Sales Tax, U.P. v. Parson Tools and Plants [1975] 35 STC 413 (SC) is squarely applicable. On the other hand on behalf of the applicants, learned A.G.P. contends that the contention raised on behalf of the respondents are devoid of merit. It is submitted that it is a settled position in law tha....
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....f sections 4 to 24 of the Limitation Act would apply, in spite of specific applicability of only the provisions of sections 4 and 12 of the Limitation Act, to an application under section 61 of the Act. Under section 29(2) of the Limitation Act, 1963 only when a local law expressly or impliedly excludes the application of section 5, does it stand excluded. The Act is a special law. In proceeding before the Tribunal the stated law is, that the Tribunal has no jurisdiction to condone delay beyond 90 days as provided under the Act except to the extent provided by sections 4 and 12 of the Limitation Act. In a challenge to an order refusing to condone delay the High Court cannot exercise jurisdiction to condone that delay. If the provisions of section 5 is not applicable to an application before the Tribunal, considering section 59 of the Act, will that section also be inapplicable to an application made to the High Court, a court of original civil jurisdiction. The "authority" under the Act exercising quasijudicial powers not being a court, the Legislature advisedly by virtue of section 60 conferred power to condone delay on the appellate authority. Such a power has not been conferred....
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....section 66(3) of the Incometax Act to condone the delay in filing an application was maintainable. This court held that the High Court had no power to condone the delay in making an application under section 66(1), when there was no power in the Tribunal itself to condone the delay. In Commissioner of Income-tax v. Velingkar Brothers reported in [2007] 289 ITR 382 (Bom), the issue before the Full Bench of this court was whether the High Court exercising jurisdiction under section 260A could condone the delay. After considering the applicable law in the matter, a Full Bench of this court was pleased to hold that the following two conditions must be satisfied for application of section 29(2) of the Limitation Act. They are: (i) there must be a provision for a period of limitation under any special or local law in connection with any suit, appeal or application; (ii) the said prescription of period of limitation under such special or local law should be different from the period prescribed by the Schedule to the Limitation Act; and (iii) there is an additional requirement, viz., that the special/local Act does not expressly exclude the application of the Limitation Act. The word "ex....
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....e amendment made in the Act of 1963 to section 29(2) whereby the amended section incorporates two changes, viz., (i) a uniform rule-making it applicable to all applications except those mentioned therein, and (ii) to all special and local enactments, unless excluded by any of them. After considering the provisions, the court observed that the applicability of the provisions (sections 4 to 24) has, therefore, to be judged not from the term of the Limitation Act but the provisions of the Act relating to filing of election petitions and their trial to ascertain whether it is a complete code in itself which does not admit the application of any other provision of the Limitation Act mentioned in section 29(2) of that Act. After considering various judgments, the court held that the provisions of section 5 of the Limitation Act do not govern the filing of election petitions or their trial, though in an appellate forum an order of the High Court to the Supreme Court the provisions would apply considering that an appeal is a creature of statute. The matter was once again considered in Lachhman Das Arora v. Ganeshi Lal reported in [1999] 8 SCC 532. The court noted that on its plain reading....
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....ies) Act, 1992 and considering section 29(2); whether the provisions of sections 4 to 24 of the Limitation Act would apply. The powers of a Special Court are exercised by a judge of a High Court. The court posed itself a question whether the Act expressly or necessarily excludes the provisions of the Limitation Act? and answered the issue as under: ". . . We think it does. The fact that it has provided for a power to condone delay under section 10(3) of the Act, shows that Parliament had consciously excluded the power of the court in relation to section 4(2). This view also finds support in the decision of this court in Gopal Sardar v. Karuna Sardar [2004] 4 SCC 252. The statutory provision under consideration in that case was section 8 of the West Bengal Land Reforms Act, 1955. It was held: 'When in the same statute in respect of various other provisions relating to filing of appeals and revisions, specific provisions are made so as to give benefit of section 5 of the Limitation Act and such provision is not made to an application to be made under section 8 of the Act, it obviously and necessarily follows that the Legislature consciously excluded the application of section 5....
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....ue being considered was whether section 14 of the Limitation Act would apply in proceedings under the U.P. Sales Tax Act, 1948. The court held that proceedings before the authorities under the Sales Tax Act were before Administrative Tribunal and not courts as contemplated under section 14 of the Limitation Act and hence section 14 does not apply. The scheme of the Act would disclose that the Legislature had deliberately excluded the application of the principles under sections 5 and 14 of the Act. Delay in disposal of revenue matters adversely affects the steady inflow of revenues and the financial status of the State. Section 10 was therefore designed to ensure speedy and final determination of fiscal matters within a reasonably certain time schedule. Relying on the observations in Shrimati Ujjam Bai v. State of Uttar Pradesh [1963] 1 SCR 778, the court quoted with approval, the following observations: "The taxing authorities are instrumentalities of the State. They are not a part of the Legislature; nor are they a part of the judiciary. Their functions are the assessment and collection of taxes, and in the process of assessing taxes, they follow a pattern of action which....
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....f the decisions earlier referred to and their ratio, it would be clear that the authorities constituted under the Sales Tax Act for deciding the tax dues are not courts, but Tribunals and unless there is an express power conferred by the Act to condone delay or exclude any period of limitation, the Tribunal would not be clothed with the power to condone the delay. In so far as the power of the Tribunal referring the matter to the High Court beyond the period prescribed by section 61 is concerned, it has been held that there is no power in the Tribunal to extend that period and consequently, as there is no power in the Tribunal, there is also no power in the High Court to condone the delay, which the Tribunal itself could not have condoned. After having provided for a reference to the High Court within a time frame of 90 days on refusal to state the case, considering that the High Court is a Civil Court, will the provisions of sections 4 to 24 of the Limitation Act apply? As noted earlier the period of limitation for an application for a reference was 30 days, which from September 1, 1969 has been extended to 90 days. The statements of objects and reasons with respect to clause (8)....