TaxTMI 
TaxTMI 
2014 (12) TMI 955
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....ce Application Nos.70 and 71 of 2011 in Second Appeal Nos.862 of 2005 and 863 of 2005. However, the Commissioner was advised to file Sales Tax Reference No. 26 of 2013 directly before this Court. That was not a proper remedy. Therefore, with the leave of this Court, the said Sales Tax Reference was allowed to be withdrawn with liberty to adopt appropriate proceedings, according to the Deponent of the Affidavit in support of this Motion. It is in these circumstances and when the correct remedy was to invoke this Court's jurisdiction under section 61(2) of the Act that the Application was filed. However, noticing that there was a delay of 90 days in filing the same that the instant Application/Notice of Motion with the above request has been filed. 3 When these Notices of Motion were placed before us a preliminary objection was raised with regard to their maintainability. The objection is that this Court had already taken a view in the judgment delivered in The Commissioner of Sales Tax, Maharashtra State, Mumbai vs. N.H. Polymers. This judgment has now been reported in [2008] 13 VST 73 (Bom) (Vol.I). 4 In view of this judgment this Court has no power to condone the delay in filing....
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....ther these provisions are not expressly excluded and in view thereof section 5 of the Limitation Act, 1963 would squarely apply. Mr. Sonpal submits that the jurisdiction of this Court under section 61 is special and exceptional. In the event this Court finds there are questions of law and which require answer and opinion by this Court, then, it should not be prevented to consider them merely because an Application in that regard has not been made in time. If important questions of law require answers then, this Court should not hesitate to answer them. 7 For all these reasons it is submitted that either the Motion be allowed or if this Court is of the view that the judgment in Commissioner of Sales Tax, Maharashtra State, Mumbai vs. N.H. Polymers requires reconsideration then, that ought to be held unhesitatingly, so that a larger bench looks at the issue afresh. 8 On the other hand, Ms. Badheka and Mr. Joshi appearing on behalf of the Assessees' in the first and second Motion submit that none of the contentions of the Revenue should detain us. The Revenue is attempting to overcome the binding judgment of this Court. That attempt should be entirely discouraged. Judicial disciplin....
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.... may be, the Commissioner fails to submit the paper book and other documents required by the Tribunal, within a period of three months from the date of order of the Tribunal served on that person or, as the case may be, the Commissioner. (2) If upon receipt of an application under subsection (1), the High Court is not satisfied as to the correctness of the decision of the Tribunal, it may require the Tribunal to state the case and refer it; and accordingly, on receipt of any such requisition the Tribunal shall state the case and refer it to the High Court. (3) If the High Court is not satisfied that the statement in the case referred under this section are sufficient to enable it to determine the question raised thereby, it may refer the case back to the Tribunal to make such additions thereto or alterations therein, as the High Court may direct in that behalf. (4) The High Court, upon the hearing of any such case, shall decide the question of law raised thereby, and shall deliver is judgment thereon containing the grounds on which such decision is founded, and shall send to the Tribunal a copy of such judgment under the seal of the Court and the signature of the Registrar, and ....
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.... has invoked the Tribunal's jurisdiction under section 61 may within 90 days of such refusal, either withdraw his Application or apply to the High Court against such refusal. Thereafter, there are further sub-sections and which enable this Court to exercise its jurisdiction and answer the question or decide it in terms of the other sub sections. 13. The argument before us is that though sub section (1) of section 61 in its first part contains a stipulation that the person can approach the Tribunal within 90 days from the date of the communication and seek the Tribunal's assistance in forwarding for opinion, a question of law, arising out of the Appellate order passed by it, but that will not mandate invocation of this Court's jurisdiction or powers within 90 days from the refusal by the Tribunal. The argument really is that within 90 days of refusal by the Tribunal, the Applicant or the person can either withdraw his Application or apply to the High Court against that refusal. That can very well be done after 90 days. If that is done after 90 days this Court is not precluded or prevented from condoning the delay and by taking recourse to section 5 of the Limitation Act, 1963. 14.....
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.... contentions and then in para 9 answered the same. Para 9 of this judgment reads as under: "9. On behalf of the respondents, it is submitted that the Act has been repealed with effect from April 1, 2005 on introduction of Value Added Tax Act, 2002. The Act, it is submitted, is a special law providing for a period of limitation different from the period prescribed under the Limitation Act, 1963 and, therefore considering section 29(2) of the Limitation Act, only those provisions would be applicable which are specifically made applicable. Since the special law prescribes the period of limitation, the Sales Tax Act would be governed by the specific provisions of the Act of 1959. Section 5 of the Limitation Act would not be applicable, considering the provisions of sections 59 and 60 of the Act of 1959, which exclude expressly or by necessary implication, the application of the provisions of the Limitation Act except sections 4 and 12. Section 59 of the Act provides that in computing the period of limitation, only the provisions of sections 4 and 12 of the Limitation Act in so far as they relate to proceedings under the provisions of sections 55, 57 and 61 will apply. A literal readin....
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....er or person subordinate to him shall be called in question, in any Court, and save as is provided by section 55 no appeal shall lie against any such assessment or order." 19. The language of this provision is imperative and mandatory. Save as is provided by section 61, no assessment made and no order passed under the Bombay Sales Tax Act, 1959 or the Rules made there under by the Commissioner or any Officer or person subordinate to him shall be called in question, in any Court and save as is provided by section 55, no Appeal shall lie against any such Assessment Order. 20. Then comes section 55 and which reads as under: "S.55. Appeals.- (1) An appeal, from every original order, not being an order mentioned in section 56 passed under this Act or the rules made thereunder, shall lie- (a) if the order is made by a Sales Tax Officer, or any other officer subordinate thereto, to the Assistant Commissioner; (b) if the order is made by a Senior Assistant Commissioner or an Assistant Commissioner to the Deputy Commissioner; (c) if the order is made by a Deputy Commissioner, Additional Commissioner, or Commissioner, or to the Tribunal. (2) In the case of an order passed in appeal by....
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....ate authority shall not enhance an assessment or a penalty or interest, or reduce the amount of drawback, set-off or refund of tax, unless the appellate has had a reasonable opportunity of showing cause against such enhancement or reduction." 21. That provides for Appeals from every original order not being an order mentioned in section 56 and passed under the Bombay Sales Tax Act or the Rules made thereunder. The Appellate Authorities are enumerated and by sub-section 3 every order passed in Appeal under section 55 shall subject to provisions of section 57, 61 and 62 is made final. 22. Then comes sub-section 4 which provides for limitation of 60 days for entertaining an Appeal. However, by sub section 5 which was substituted by Maharashtra Act 22 of 2001, the Appellate Authority or the Tribunal as the case may be while admitting the Appeal stay the order passed against and thereafter the further provisions enumerate the powers of the Appellate Authority. 23. In section 56 of the Bombay Sales Tax Act, 1959 we find a stipulation of non-appealable orders. That sets out that even no Application for revision shall lie against certain orders. 24. Then comes section 57 which confers ....
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.... the explanation below that explains as to what could not be termed as a sufficient cause. 26. It is thereafter section 61 appears in the statute book. A reading of sections 59 and 60 of the Bombay Sales Tax Act, 1959 together enabled the Division Bench in Commissioner of Sales Tax, Maharashtra State, Mumbai vs. N.H. Polymers to come to a conclusion that the legislature did not intend to confer any power in this Court to condone the delay by taking recourse to section 5 of the Limitation Act, 1963. In other words both Tribunal and this Court have to abide by the limit of 90 days and if the Application is filed beyond that period the Court has no powers to condone the delay by taking recourse to section 5 of the Limitation Act, 1963. 27. As recently as in August, 2014 a three Judge Bench of the Hon'ble Supreme Court had an occasion to consider the applicability of section 5 of the Limitation Act, 1963 to the Revision Application which was filed before the Madhya Pradesh High Court under Madhya Pradesh Madhyastham Adhikaran Adhiniyam (29 of 1983). The judgment of the Hon'ble Supreme Court in State of M.P. and Anr. vs. Anshuman Shukla is reported in AIR 2014 SC 3403, there the quest....
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.... treat within limitation, an application filed before it beyond such maximum time-limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of section 14(2) of the Limitation Act." 29. On a conspectus of 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. 28. Therefore, it may be as Mr.Sonpal contented there should be an express exclusion of section 5 of the Limitation Act, 1963, so as to disable the Court from co....
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....e High Court can deal with the Application and then find out for the purpose of recording its satisfaction as to whether the Tribunal's decision not to refer any question and stated to be of law for opinion of this Court is correct or not. 29. The nature of the power must therefore be borne in mind. There is no comparison of this power with that of an Appellate power and to approach the Appellate Authority against an erroneous or incorrect decision is held to be a right conferred by the statute. More often then not we have seen a provision such as "an Appeal shall lie" which would be indicate that an Appellate power is created by the statute and that also confers a right in the aggrieved party to approach the Appellate Authority or Tribunal. It is a remedy to correct an erroneous, incorrect and illegal order and at the first available opportunity and within the statutory frame work, that the Appellate Authority has been conferred further power to condone the delay in filing of an Appeal. It is in such circumstances, that section 60 uses the words and of great significance, namely, the Appellate Authority may admit the Appeal under section 55 after the period of limitation laid dow....
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....of is made shall not be excluded." 30. By section 3 bar of limitation has been provided whereas what is dealt with by section 4 is expiry of prescribed period when Court is closed. This is a provision where if the period prescribed for any suit, appeal or application expires on a date when the Court is closed, that suit, appeal or application may be instituted, preferred or made on the date when the Court reopens. 31. Then comes section 5 where extension of prescribed period in certain cases is provided. That provision or section reads as under: "5. Extension of prescribed period in certain cases. - Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation - The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section." 32. A perusal....
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....e examining whether the Limitation Act would be applicable to the provisions of Representation of People Act, observed as under: "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." 30. According to Hukumdev Narain Yadav (AIR 1974 SC 480) (supra), even if there exists no express exclusion in the special law, the court reserves the right to examine the provisions of the special law....
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....les Tax Act, 1959 are concerned. This conclusion has been reached by the Division Bench after referring extensively to Vasanji Ghela & Co. vs. The State of Maharashtra & Anr. (supra). In para 6 and thereafter giving elaborate reasons in para 10 as to why it holds that Vasanji Ghela & Co. vs. The State of Maharashtra & Anr. (supra) is no longer the correct law. In such circumstances, the doctrine or rule of precedents and as laid down by the Hon'ble Supreme Court applies. In other words, there are two Division Bench Judgments, Mehta Construction Company vs. State of Maharashtra & Anr. (supra) and Commissioner of Sales Tax, Maharashtra State, Mumbai vs. N.H. Polymers (supra) of this Court which bind us. They make extensive reference to the Judgments of the Hon'ble Supreme Court. That is how the Rule of precedents applies in this case. 36. In that regard the reliance placed by Mr. Joshi on a Division Bench order to which one of us (S.C. Dharmadhikari, J.) is a party in the case of The Commissioner of Sales Tax, Maharashtra State vs. M/s. Jilani Tools Ltd. in Sales Tax Reference No.9 of 2000, decided on 12th August, 2014 is accurate. 37. The following paragraphs from that jud....