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Commissioner of Sales Tax, U.P., Lucknow Vs. Parson Tools and Plants, Kanpur - Court Judgment

LegalCrystal Citation
Overruled ByThe Commissioner of Sales Tax, U.P., Lucknow Vs. Parson Tools and Plants, Kanpur
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberSales Tax Ref. No. 344 and 347 of 1967
Judge
Reported inAIR1970All428; [1971]27STC73(All)
ActsLimitation Act, 1963 - Sections 5 and 14(2); Uttar Pradesh Sales Tax Act, 1948 - Sections 9, 10, 10(3B) and 11
AppellantCommissioner of Sales Tax, U.P., Lucknow
RespondentParson Tools and Plants, Kanpur
Advocates:Standing Counsel
Excerpt:
limitaion - calculation of period - section 14 of limitation act, 1963 - extension of period for filing revision while pendency of restoration applications - held, time taken for considering restoration application can be excluded for calculating period of limitation. - - sub-section (2) provides that in computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another 'civil proceeding',whether in a 'court of first instance or in a court of appeal',against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a 'court' which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. the standing counsel has not asserted.....dwivedi, j. 1. these are two references under section 11(1) of the u.p. sales tax act (hereinafter called the act). the judge (revisions) sales tax has made these references. he has formulated a common question of law and has referred the cases for opinion to this court. the common question of law is this: 'whether under the circumstances of the case section 14 of the limitation act extended the period for filing of the revisions by the time during which the restoration applications remained pending as being prosecuted bona fide?'2. facts giving rise to these references are these: the respondent, m/s. parson tools and plants, kanpur, carries on business at kanpur. the sales tax officer assessed sales tax for the assessment years 1958-59 and 1959-60 on the respondent. two separate orders.....
Judgment:
Dwivedi, J.

1. These are two references under Section 11(1) of the U.P. Sales Tax Act (hereinafter called the Act). The Judge (Revisions) Sales Tax has made these references. He has formulated a common question of law and has referred the cases for opinion to this Court. The common question of law is this:

'Whether under the circumstances of the case Section 14 of the Limitation Act extended the period for filing of the revisions by the time during which the restoration applications remained pending as being prosecuted bona fide?'

2. Facts giving rise to these references are these: The respondent, M/s. Parson Tools and Plants, Kanpur, carries on business at Kanpur. The Sales Tax Officer assessed sales tax for the assessment years 1958-59 and 1959-60 on the respondent. Two separate orders were made. There were two appeals by the respondent. On the date of the hearing of the appeals the respondent was absent. So the appeals were dismissed in default on May 10, 1963. The appeals were dismissed in default by virtue of Rule 68(5) of the U.P. Sales Tax Rules. Rule 68(5) allowed dismissal of appeals in default. Sub-rule (6) of Rule 68 provided for setting aside the dismissal in default and for the readmission of the appeal. In accordance with Sub-rule (6), the respondent made two applications for setting aside the dismissal in default and for readmission of the appeals. While these applications were pending. Sri Justice Manchanda held in a case that Sub-rule (5) of Rule 68 was ultra vires the rule making authority and that the appellate authority could not dismiss an appeal in default. He held that the appeal should be decided on merits even though the appellant be absent. When the applications came up for hearing on October 10, 1964, the appellate authority dismissed them outright in view of the decision of Sri Justice Manchanda. Then the respondent filed two revisions under Section 10 of the Act. Section 10 prescribes a period of limitation for filing a revision. The maximum period of limitation is one year and six months. But the revisions were filed beyond this maximum period. The Judge (Revisions) gave the benefit of Section 14 Limitation Act and excluded the period during which the respondent had been prosecuting the applications for readmission of the appeals. He found, as he should have, that the action of the respondent was bona fide. Excluding the period, he held that the revisions were filed within time. The Commissioner, Sales Tax, then asked the Judge (Revisions) to makea reference to this Court under Section 11(1). These are all the essential facts for our purpose.

3. The respondent has not put in appearance. Sri R. R. Agarwala, as amicus curiae, has presented his case before us, and the Court is thankful to him.

4. Coming to the merits, the Act is a special law. It prescribes a period of limitation for filing a revision under Section 10. No period of limitation for filing such a revision is prescribed by the First Schedule of the Limitation Act. Accordingly Section 29(2) Limitation Act is attracted to the case. By virtue of Section 29(2), Section 14, Limitation Act will apply provided the requirements of that provision are fulfilled in these references and Section 14 is not expressly excluded by the Act.

5. Section 14 consists of two Sub-sections. We are not concerned with Sub-section (1) in these references. Sub-section (2) is material for our purpose. Sub-section (2) provides that in computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another 'civil proceeding', whether in a 'court of first instance or in a Court of appeal', against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a 'Court' which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. Sub-section (2) lays down several conditions. The Standing Counsel has not asserted that none of those conditions is satisfied in these cases. However, he has maintained that two of those conditions are not satisfied. According to him, the applications before the appellate authority were neither (i) 'a civil proceeding' nor (ii) was the appellate authority a 'Court'.

6. (1) Re. Civil proceeding: The expression 'civil proceeding' is not defined in the Limitation Act. But it appears from the context of Sub-section (2) of Section 14 that it is used in contradistinction with a criminal proceeding or a proceeding which is neither civil nor criminal. It is a proceeding for vindicating a civil right. In these cases there was an assessment of tax on the respondent. The respondent filed appeals in order to get rid of the assessments. The assessments would deprive them of a certain amount of money. So they were seeking a relief in respect of a civil right to property. The appeals accordingly constituted a civil proceeding. A civil proceeding will include a proceeding which seeks relief against the enforcement of a taxation statute.

'The primary object of a taxation statute is to collect revenue for the governance of the State or for providing specified services and such laws directly affect the civil rights of the tax payer. If a person is called upon to pay tax which the State is not competent to levy, or which is not imposed in accordance with the law which permits imposition of the tax, or in the levy, assessment and collection of which rights of the tax payer are infringed in a manner not warranted by the statute, a proceeding to obtain relief whether it is from the tribunal set up by the taxing statute, or from the civil Court would be regarded as a civil proceeding'.

(Per Sri Justice Shah in Narayan Row v. Ishwarlal Bhagwandas : [1965]57ITR149(SC) . The applications for the readmission of the appeals will partake of the nature of appeal and will be a civil proceeding.

7. (2) Re. Court : This is rather not an easy question. According to counsel for the respondent the appellate authority as well as the Judge (Revisions), function as a 'Court' under the Act, After the Sales Tax Officer has made assessments, there lies an appeal under Section 9 before the appellate authority. By Rule 2(bbb) the Assistant Commissioner (Judicial) performs the duties and exercises the powers of an appellate authority. He is different from the Assistant Commissioner (Executive) who performs executive duties and exercises executive powers and does not entertain and decide appeals under Section 9. Chapter 11 of the Sales Tax Rules deals with appeal and revision. Rules 65 to 68 provide for the entertainment and disposal of an appeal. The appeal is decided after hearing the appellant and the Sales Tax Officer. Section 10 provides for a revision against the appellate order. The revision is filed before the Revising Authority. The Judge (Revisions) is the person who performs the duties and exercises the powers of a Revising Authority. The Revising Authority hears the parties and then decides the revision. Rule 69 regulates the procedure for the entertainment and decision of a revision. We are also referred to Rule 75 of the Sales Tax Rules. This rule provides that the Sales Tax Officer, the Assistant Commissioner (Judicial) and Judge (Revisions) as well as some other authorities appointed under the Sales Tax Act shall have the same powers as are vested in a Court under the Code of Civil Procedure, when trying a suit in respect of, Inter alia, examining any person on oath or affirmation.

Counsel for the respondent points out that it will appear from these provisions of the Act and the Rules that the appellate authority as well as the Revising Authority function in a judicial manner. That is, no doubt, true. They are tribunals constituted under the Act. Then he draws our attention to the definition of the word 'Court' in the Evidence Act and submits that they are a Court according to that definition. That is also true for they are empowered to examine persons on oath or affirmation. So they are a Court in the wider sense of the term. But there is no doubt that they are not a Court in the strict sense of the term. So it is necessary to ascertain whether the word 'Court' is used in Subsection (2) of Section 14 Limitation Act in its wider sense or in its strict sense.

8. Judicial opinion appears to be divided on this issue. In Firm Behari Lal Baijnath Prasad v. Punjab Sugar Mills Co. Ltd. : AIR1943All162 , a Division Bench of this Court held that an arbitrator appointed by parties to settle their dispute is a 'Court' within the meaning of Sub-section (1) of Section 14 Limitation Act. The view of the Division Bench was followed by the Nagpur High Court in Fatehchand Ganeshram v. Wasudeo Shrawan, AIR 1948 Nag 334 as well as by the Rajasthan High Court in Bhupendra Singh v. Thakur Gulab Singh, : AIR1966Cal92 . But the Bombay High Court has taken a different view. It has held that Sub-section (1) of Section 14 applies to judicial Courts and not to domestic forums or tribunals (Parshottam Das Hassaram v. Impex (India) Ltd. : AIR1954Bom309 . In Noor Ali v. Kanpur Omnibus Service Ltd., : AIR1955All707 , a learned single Judge of this Court held that the authority appointed under Section 15(1), Payment of Wages Act, is not a 'Court' within the meaning of Section 14(1) Limitation Act. In Ram Prasad Hanuman Das v. Commr., Sales Tax (Sales Tax Reference No. 417 of 1962 D/- 6-5-1966 (All)) a Division Bench of this Court has, on the other hand, held that the appellate authority under Section 9 is a 'Court' within the meaning of that term in Sub-section (2) of Section 14 Limitation Act. It was accordingly held that the time spent in prosecuting the appeal before the appellate authority can be excluded in computing the period of limitation for filing a revision before the Revising Authority under Section 10 of the Act. This decision is directly on the point before us.

9. The Standing Counsel has referred us to a decision of the Supreme Court in Nityananda M. Joshi v. Life Insurance Corporation of India, : (1969)IILLJ711SC . This case arose out of a proceeding under Section 33-C(2), Industrial Disputes Act. In P. K. Porwal v. Labour Court : (1968)IILLJ505Bom , the Bombay High Court held that an application under Section 33-C(2) was governed by the period of limitation provided for in Article 137 Limitation Act, 1963. The Supreme Court has disagreed with this view of the Bombay High Court. The Supreme Court has held that Article 137 does not apply to an application under Section 33-C(2). It is said that Article 137 applies to 'Courts', but the Labour Court before whom an application under Section 33-C(2) is filed is not a 'Court'. 'In our view. Article 137 only contemplates applications to Courts. In the third division of the schedule to the Limitation Act, 1963, all the other applications mentioned in the various articles are applications filed in a Court.

Further, Section 4 of the Limitation Act, 1963, provides for the contingency when the prescribed period for any application expires on a holiday and the only contingency contemplated is 'when the court is closed'. Again under Section 5 it is only a court which is enabled to admit an application after the prescribed period has expired if the court is satisfied that the applicant had sufficient cause for not preferring the applications. It seems to us that the scheme of the Indian Limitation Act, 1963, is that it only deals with applications to courts and that the Labour Court is not a court within the Indian Limitation Act, 1963'. (Per Sri Justice Sikri at page 200 of the Report). It seems to me to follow from this passage that the word 'Court' in Sub-section (2) of Section 14 Limitation Act signifies a 'Court' in stricto sensu.

10. We are also referred to some cases under Acts other than the Limitation Act. In Thakur Jugal Kishore v. Sitamarhi Central Co-operative Bank Ltd. : 1967CriLJ1380a , Registrar Co-operative Societies was held to be a Court for purposes of the Contempt of Courts Act. In Gita Mitra v. S. P. Ghosh : AIR1953Cal297 the Rent Controller appointed under the West Bengal Rent Control Act was held not to be a Court. These cases are not concerned with Sub-section (2) of Section 14, Limitation Act and therefore, they are of little help in our difficulty.

11. The immediate context of Sub-section (2) appears to suggest that the word 'Court' signifies a Court in the strict sense. Sub-section (1) of Section 14 provides that in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. The words 'suit,' 'cause of action', 'plaintiff' and 'defendant' suggest that Sub-section (1) of Section 14 uses the word 'Court' in thenarrower sense and not in the wider sense. Having regard to the context of Sub-section (2) of Section 14, I am inclined to take the view that the word 'Court' signifies a Court in stricto sensu and does not include an authority who acts as a tribunal or a quasi-judicial tribunal and may be regarded as a Court in the wider sense of the term.

12. Neither the appellate authority under Section 9 nor the Revising Authority under Section 10 of the Act is a Court stricto sensu. The powers of the appellate authority are mentioned in Sub-section (3) of Section 9. The appellate authority may confirm, reduce, enhance or annul the assessment made by the Sales Tax Officer or set aside the assessment and direct him to pass a fresh order. He may confirm or cancel the order imposing penalty or reduce the amount of penalty imposed. He may also confirm, annul or modify the order allowing or refusing exemption under Clause (b) of Sub-section (1) of Section 4 or confirm, enhance or reduce the fee levied by the Sales Tax Officer under Clause (b) of Sub-section (1) of Section 4 or set aside the order allowing or refusing exemption under Clause (b) of Sub-section (1) of Section 4 and may direct the Sales Tax Officer to pass fresh orders. He may also confirm an order passed under Section 30 or set it aside and direct the Sales Tax Officer to reopen the case under Section 30. The powers of the Revising Authority under Section 10 are of like nature.

It will thus appear that even though the appellate authority and the Revising Authority act quasi-judicially, the true nature and character of their powers and duties is fiscal. In Shell Company of Australia v. Federal Commr. of Taxation, 1931 AC 275, it was contended before the Privy Council that the Board of Review, which heard tax appeals arising from the order of the Commissioner, was a Court. The Privy Council repelled the contention and held that the Board of Review was not a Court. The Privy Council said:

'The Board of Review appears to be in the nature of administrative machinery to which the taxpayer can resort at his option in order to have his contentions reconsidered. An administrative tribunal may act judicially, but still remain an administrative tribunal as distinguished from a Court, strictly so-called. Mere externals do not make a direction to an administrative officer by an ad hoc tribunal an exercise by a Court of judicial power,'

We may also recall various authorities to the effect that a proceeding for mutation of names under the Land Revenue Act is a fiscal proceeding and not a proceeding before a Court. (Muhammad Subhan Ullah v. Secy. of State, (1904) ILR 26 All 382). In view of the SupremeCourt decision in Nityananda's case : (1969)IILLJ711SC and other decisions as well as the context of Section 14(2) it seems to me that the appellate authority under Section 9 and the Revising Authority under Section 10 are not a 'Court' within the meaning of that term in Sub-section (2) of Section 14, Limitation Act.

13. But it does not conclude the matter. It is still to be seen whether the principle underlying Sub-section (2) of Section 14 will apply to the cases before us. In Ramdutt Ramkissen Dass v. E. D. Sassoon and Co., AIR 1929 PC 103 the Privy Council extended the principle of Section 14 to the proceedings before an arbitrator. There appears to be no reason why the principle of Sub-section (2) of Section 14 should not be extended to the facts of these cases. But the Standing Counsel says that we cannot extend the principle to these cases as no such question was referred to this Court by the Revising Authority. He says that the question referred to us asks our opinion on the limited question of the applicability of Section 14 in these cases. I do not agree with this narrow interpretation of the question referred to us. I am satisfied that the question of the extension of the principle underlying Sub-section (2) of Section 14 is involved in the question referred to us. Even if it is not so involved, this Court is free to reframe the question in order to bring out the real issue in these cases. I have already stated the salient facts of these cases. The real issue before the Revising Authority was whether the tune spent in prosecuting the application for setting aside the order of dismissal in default and for the re-admission of the appeal can be excluded from computing the period of limitation provided for filing a revision under Section 10. The question referred to us may be refrained to bring out pointedly this real issue. This Court can undoubtedly do this. (See Shiva Prasad v. Commr. of Income-tax : AIR1929All819 ; Commr. of Income-tax v. G. M. Chennabasappa; : [1959]35ITR261(AP) and Narain Swadeshi Weaving Mills v. Commr. of Excess Profits Tax : [1954]26ITR765(SC) .

14. Section 10 (3-B) cannot exclude the application of the principle underlying Section 14(2). The two provisions have different visions and are not incompatible. Section 10 (3-B) applies to a case where admittedly the period of limitation has expired and enables the appropriate authority to condone delay for sufficient cause. It resembles Section 5, Limitation Act. But Section 14(2) extends the specific period of limitation and saves it from expiring.

15. In accordance with the foregoing discussion I reframe the question in this manners:

'Whether in the facts and circumstances of the case the period spent in prosecuting the application for setting aside the order of dismissal of appeals in default and for readmission of the appeals can be excluded from computing the period of limitation for the filing of the revision with the aid of Section 14, Limitation Act or by the application of its principle to the cases at hand?'

16. My answer to the question so re-framed is that the time spent in prosecuting the application for setting aside the order of dismissal of appeals in default can be excluded from computing the period of limitation for filing the revision by the application of the principle underlying Section 14(2), Limitation Act. As the respondent has not appeared, there is no order as to costs. Counsel's fee is fixed at Rs. 200.

S.N. Singh, J.

17. I have had the advantage of reading the opinion prepared by my learned brother Dwivedi and I agree with the proposed answer to the question reframed by him. However, I am further of opinion that with the aid of Section 29, Sub-clause (2) of the Indian Limitation Act the answer to the question referred could also be given in the affirmative even without reframing the question referred.

18. The facts of the case as well as the question referred have already been given by my learned brother and I do not propose to repeat the same nor do I propose to refer to all those authorities mentioned in his judgment. Section 29, Sub-clause (2) of the Indian Limitation Act reads asfollows:--

* * * **

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 determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as and to the extent to which, they are not expressly excluded by such special or local law.'

19. It cannot be disputed that U. P. Sales Tax Act is a special law and that this special law provides a different period of limitation than that the one provided in the 1st Schedule of the Limitation Act and that there is no specific provision expressly excluding the application of Sections 4 to 24 of the Limitation Act in this special law. So Section 29, Sub-clause (2) of the Limitation Act is attracted, vide Kaushalya Rani v. Gopal Singh : [1964]4SCR982 . A Full Bench of this Court also in Messrs, Gopaldas Saryadayal v. Commr.of Sales Tax, U. P. : AIR1956All305 has held that

'there is no doubt that Section 29, Limitation Act, is applicable to the U. P. Sales Tax Act which is a special law dealing with sales tax in Uttar Pradesh having been passed by U. P. Legislature. Under Section 29, Limitation Act, the period of limitation prescribed for any suit, appeal or application by the U. P. Sales Tax Act has to be computed after applying the provisions contained in Sections 4, 9 to 18 and 22. Limitation Act.'

20. It is argued that Section 14(2) cannot be applied to proceedings under the U. P. Sales Tax Act because Section 14(2) applies to civil proceedings in a Court of first instance or in a Court of appeal and as the tribunals constituted under the U. P. Sales Tax Act cannot be termed as Courts, Section 14(2) of the Limitation Act cannot be applied. It is true that having regard to Rule 75 of the Sales Tax Rules it cannot be said that strictlv speaking the tribunals constituted under the U.P. Sales Tax Act can be termed as Courts although they perform all the functions of the Court. Even though these tribunals are not Courts in the strict sense of the term Section 5 of the Limitation Act has been made applicable to proceedings under Sections 9 and 11 of the Act and for the purposes of these sections these tribunals have been deemed to be Courts by expressly providing the applicability of Section 5 of the Limitation Act to these proceedings. The intention of the Legislature appears to be to treat these tribunals as Courts for the purposes of Sections 4, 9 to 18 and 22 of the Old Limitation Act. This has to be remembered that this U. P. Sales Tax Act was passed in the year 1948 when the old Limitation Act was applicable and under the old Limitation Act unless Section 5 was specifically made applicable it could not be applied and Sections 4, 9 to 18 and 22 of the Limitation Act could be applied in terms of Section 29(2) of the Limitation Act. This is why it appears that Section 5 was expressly made applicable and the other provisions were left to be applied by virtue of Section 29(2) of the Limitation Act. Section 14 of the Limitation Act contains a general principle which is based on justice, equity and good conscience and it would not be proper to place a narrow construction upon the word 'Court' in it as was held in Firm Ramnath Ramachandra v. Firm Bhagatram and Co., .

21. In Mohammad Maqsood AH Khan v. Hoshiar Singh. : AIR1945All377 a Division Bench of this Court held that

'the operation of Section 14 should not be restricted. Its principle should be followed in suitable cases even in proceedings which cannot strictly be called proceedings in a Court of law. If the conduct of the person claiming its benefitshas been bona fide, that is, he has established his good faith, if he has been prosecuting with due diligence another civil proceeding, he is entitled to its benefits.'

This authority would show that even when Section 14 of the Limitation Act in terms cannot be applied, the principle thereof should be applied.

22. In view of the above discussion my answer to the question referred is in the affirmative and in any case I am of opinion that principles underlying Section 14(2) of the Limitation Act are applicable to the facts of this case and in case the word 'Court' is interpreted in the strict sense of the term the question referred should be reframed and answered as proposed by my learned brother Dwivedi. I further agree with him that respondent is not entitled to costs.

Hari Swarup, J.

23. I have had the advantage of looking into the judgments dictated by my learned brothers Dwivedi and Singh, JJ., but for reasons given below I would answer the question referred to us in the negative.

24. M/s. Parson Tools and Plants were assessed to sales tax under the U. P. Sales Tax Act for the assessment years 1958-59 and 1959-60. Against the assessment orders two appeals were preferred by the assessee. On 10-5-1963, the appeals were dismissed in default. The assessee made applications for restoration of the appeals. The restoration applications were subsequently dismissed on 20th October, 1964 on the ground that Rule 68 (5) of the U. P. Sales Tax Rules being ultra vires as held by the High Court no application for restoration of the appeals was maintainable as the appeals could not be deemed to have been dismissed in default. The assessee then filed revisions against the original orders passed by the Appellate Authority dismissing the appeals. These revisions were filed on 21-1-1965, i.e. after the expiry of the period prescribed for films the revision. The Judge (Revisions) Sales Tax, U. P. held that the assessee was entitled to the benefit of Section 14 of the Indian Limitation Act and applying the provisions of Section 14 entertained the revisions and allowed the same. The Commissioner of Sales Tax, U. P. then made an application under Section 11 of the U. P. Sales Tax Act in each case for referring to this Court the question of law arising out of the revisional order.

The Judge (Revisions) framed the following question and referred it to this Court:

'Whether under the circumstances of the case Section 14 of the Limitation Act extended the period for filing of the revisions by the time during which the restoration applications remained pending as being prosecuted bona fide?'

25. Section 14(2) of the Limitation Act can apply to proceedings under Section 10of the U. P. Sales Tax Act only if the same could be made applicable by virtue of Section 29(2) of the Limitation Act, and in its turn Section 29(2) will apply only if the U. P. Sales Tax Act, which is a special law, prescribed for revisional applications a period of limitation different from the period prescribed by the Schedule to the Limitation Act. Section 10 (3-B) of the U. P. Sales Tax Act does provide a period of limitation for the filing of revision before the Judge (Revisions) Sales Tax under Section 10 (3-1) of the Act. But the question is whether such a provision is sufficient to attract the provisions of Section 29(2) of the Limitation Act. For this purpose it will have to be seen if the Schedule of the Limitation Act provides either no period or a different period of limitation for such revisions and further if the Limitation Act at all applies to or can be made applicable to revisional proceedings under Section 10 of the U. P, Sales Tax Act.

26. The basic pre-condition for the applicability of Sections 29(2) and 14(2) of the Limitation Act is that the proceedings to which the provisions are to be applied must be before a Court, properly so called. The Indian Limitation Act applies only to suits, appeals and applications before a Court and does not apply to proceedings before Tribunals which are not Courts. It was held by the Supreme Court in the case of Town Municipal Council Athani v. Presiding Officer, Labour Court : (1969)IILLJ651SC while considering the addition of words: 'other proceedings' in the title of the new Limitation Act:

'We do not think that this addition necessarily implies that the Limitation Act is intended to govern proceedings before any authority, whether executive or quasi-judicial, when, earlier, the old Act was intended to govern proceedings before Civil Courts only ............... The questionstill remains whether this alteration can be held to be intended to cover petitions by a petitioner to authorities other than Courts. We are unable to find any provision in the new Limitation Act which would justify holding that these changes in definition were intended to make the Limitation Act applicable to proceedings before bodies other than Courts.'

In the case of : (1969)IILLJ711SC it was held by the Supreme Court:

'It seems to us that the scheme of the Indian Limitation Act is that it only deals with applications to Courts.........'

The Judge (Revisions) Sales Tax has, no doubt, some of the trappings of a Court but it cannot be regarded as a Court exercising judicial power of the State. It is a special Tribunal created for a special purpose and that purpose is only to ascertain the correct amount of tax payable by a dealer. It cannot be regarded to be a Court properly so called as it does not perform the duty of deciding disputes between the parties and thus does not perform the fundamental function of a Court. To borrow the language of the Privy Council from 1931 AC 275, the Judge (Revisions) Sales Tax will be

'in the nature of administrative machinery to which the taxpayer can resort at his option in order to have his contentions reconsidered. An administrative tribunal may act judicially, but still remain an administrative tribunal as distinguished from a Court, strictly so-called.'

The Judge (Revisions) Sales Tax while hearing the revisions under Section 10 of the U. P. Sales Tax Act does not act as a Court but only as a revenue tribunal and hence the provisions of the Indian Limitation Act cannot apply to proceedings before him. If the Limitation Act does not apply then neither Section 29(2) nor Section 14(2) of the Limitation Act will apply to proceedings before him.

27. The contention of the learned amicus curiae counsel that the revisional authority while acting under Section 10 of the U. P. Sales Tax Act should for the purposes of the Limitation Act be deemed to be Court because Section 5 of the Limitation Act had been made applicable to the appeals under Section 9 and reference applications under Section 11 (1) and (3) of the Act cannot be sustained. So far as revisions under Section 10 are concerned Section 5 of the Limitation Act was not made applicable but a specific limited period had been fixed for entertaining revision applications beyond prescribed period of limitation. This shows that only the principle of Section 5, Limitation Act was sought to be applied to proceedings under Sections 9 and 11 of the Act when Section 5 was made applicable. As the tribunals are not Courts, Section 5 of the Limitation Act as such could not be applicable. Moreover, mere applicability of Section 5 of the Limitation Act to proceedings under Sections 9 and 11 of the U. P. Sales Tax Act cannot be sufficient to convert the appellate and revising authorities into Courts so as to attract the provisions of Sections 14(2) and 29(2) of the Limitation Act

28. The learned amicus curiae counsel referred to the case decided by this Court reported in : AIR1956All305 for his contention that Section 29(2) is applicable to the proceedings before the Judge (Revisions) Sales Tax. The decision in that case Ss, however, not on this particular issue. The question referred for answer in that case in substance was whether the provisions of Section 12(2) of the Limitation Act were applicable to an application underSection 11 (1) of the U. P. Sales Tax Act The answer given by all the five learned Judges who constituted the Bench was in the negative and it was held that Section 12(2) of the Indian Limitation Act was not attracted to the proceedings. Reliance was, however, placed on the observation in the judgment of V. Bhargava, J. as he then was in this Court, to the effect.

'there is however, no doubt that Section 29, Limitation Act, is applicable to the U. P. Sales Tax Act.........'

But it will be seen that from the very beginning it was assumed that the Judge (Revisions) Sales Tax was a Court. This Court in that case did not go into the question whether the Judge (Revisions) Sales Tax acted as a Court or as a Tribunal and whether Section 29(2) was applicable to the application for revision filed before him under Section 10 of the Act. The judgment of B. Upadhya, J. also shows that he presumed the Judge (Revisions) Sales Tax to be a Court Mootham C. J. and Agarwala J. only expressed their agreement and Dayal. J. did not go into the question. As the question referred to the Full Bench was about the applicability of Section 12 of the Limitation Act to proceedings under Section 11(1) of the Act and the answer was that Section 12 was not applicable, the decision in that case cannot be held to be an authority for the proposition that the provisions of Section 29(2) of the Indian Limitation Act were applicable to proceedings before the Judge (Revisions) Sales Tax.

Further in view of the clear observations made by the Supreme Court in the subsequent cases of Town Municipal Council Athani, : (1969)IILLJ651SC and Nittyanand M. Joshi : (1969)IILLJ711SC (Supra) it cannot be held that Section 29(2) or any other provision of the Indian Limitation Act would apply to proceedings under Section 10 of the U. P. Sales Tax Act. The reason is that Judge (Revisions) Sales Tax does not act as a Court within the meaning of the Limitation Act. Even if it be assumed that Section 29(2) of the Act can be attracted to proceedings before Tribunals which are not Courts, strictly so called, the same cannot be applicable to a revision application under Section 10 of the U. P. Sales Tax Act as It is not such an application as is contemplated by Section 29(2) of the Limitation Act. For considering if a different period of limitation is provided in the Schedule for such an application it would be necessary to examine the various articles in the Schedule. The only Articles of the Limitation Act which could be deemed to be attracted are Articles 137 and 131 and if either of them can be applicable to the circumstances of the case then by virtueof Section 29(2) of the Limitation Act Section 14(2) of the Act will be attracted to the revisional proceedings before the Judge (Revisions) Sales Tax. But as neither of these two Articles applies to such applications it cannot be held that Section 10 (3-B) of the U. P. Sales Tax Act provides a period of limitation different from that provided in the first Schedule of the Limitation Act.

It has been held by the Supreme Court in a number of cases that for attracting the applicability of Article 137 it is necessary that the proceedings should be in a Court and the application should be under the Civil P. C. In the case of : (1969)IILLJ711SC it was observed that although it may require further consideration whether applications under other provisions apart from Civil P. C. are included within Article 137 of the Limitation Act, 1963, or not, there was no doubt that the applications contemplated by Article 137 were only those which are filed in 'Courts'; and on this basis it was held that an application filed in a Labour Court was not governed by Article 137 of the Limitation Act as the Labour Court was not a 'Court.' The earlier view that the applications contemplated by Article 137 of the Limitation Act were only those which were filed under the Code of Civil Procedure in respect of civil proceedings still holds the field and no case has been cited in which a contrary view might have been taken by the Supreme Court Article 131 of the Limitation Act deals with the filing of revisions and refers only to revisions under the Code of Civil Procedure and the Code of Criminal Procedure. This further shows that the revisions contemplated by the Limitation Act are only those which are filed either under the Code of Civil Procedure or under the Code of Criminal Procedure and not revisions which are filed under some special Acts such as the U. P. Sales Tax Act, The only conclusion possible from the aforesaid Is that the revisions contemplated by the Limitation Act are only those which are filed in ordinary Courts exercising regular civil or criminal jurisdiction.

29. As no specific Article in the Schedule to the Act is applicable to the revisions filed before the Judge (Revisions) Sales Tax under Section 10 of the U. P. Sales Tax Act, it will have to be examined if the provisions of Section 29(2) of the Limitation Act can be attracted even though no period of limitation for such revisions is provided in the Schedule. It is possible for Section 29(2) of the Indian Limitation Act to be attracted to proceedings for which no limitation in the first schedule of the Limitation Act is prescribed. This was so held in Vidyacharan Shukla v. Khub Chand Baghel, : [1964]6SCR129 and : [1964]4SCR982 . But in these cases the proceedings were to bebefore a Court strictly so called and therefore, to them the provisions of Indian Limitation Act were applicable by force of the enactment itself. The condition precedent appears to be that the proceedings to which Section 29(2) is to be applied must be before a Court, viz. a Court exercising regular civil or criminal jurisdiction. In the present case the proceedings before the Judge (Revisions) Sales Tax under Section 10 of the U. P. Sales Tax Act were not proceedings before a Court and hence the period prescribed for filing of revisions before him cannot be deemed to be a period prescribed under the Limitation Act and hence Section 29(2) of the limitation Act cannot be attracted.

30. All applications which are not specifically mentioned in any part of the 1st Schedule of the Indian Limitation Act are governed by Article 137 of the Act and as the applications under Article 137 of the Act are only those which are made in Courts no other application can be deemed to be contemplated by the Indian Limitation Act. There can be no justification for giving to the term 'application' under Section 29(2) an interpretation different from one given to the term 'application' under Article 137 of the Limitation Act A revision under Section 10 of the U. P. Sales Tax Act cannot, therefore, be deemed to be such an application and, therefore. Section 29(2) of the Act cannot be applicable to those proceedings. According to : [1964]6SCR129 Sub-section (2), of Section 29 cannot be read in two parts, the entire Sub-section must be read as a whole and if it is so read the proceedings under Section 10 of the U. P. Sales Tax Act not being before a Court and not being in the nature of suit, appeal or application as contemplated by Section 29(2) of the Limitation Act, cannot attract the provisions of Section 29(2) of the Indian Limitation Act and if Section 29(2) does not apply then Section 14 can certainly not apply.

31. My answer, therefore, to the question referred is: 'No.'

32. Mr, Raja Ram Agarwal, Advocate, who was appointed amicus curiae in the case as the assessee was not represented, contended that even if Section 14 of the Limitation Act did not apply Its principle can be made applicable and the answer to the question referred should be given in the affirmative. This is, however, not possible, firstly, as the question whether the period of limitation can be extended by applying the principle of Section 14, Limitation Act has not been referred to this Court and, secondly, because this question does not arise out of the revisional order. Further even if it be taken that a question arises out of the order it would not be possible to give the answer in the affirmative.

33. Under Section 11 of the U. P. Sales Tax Act only such questions can be referred to the High Court as arise out of the revisional order. The jurisdiction of the High Court is neither appellate nor revisional nor supervisory. As held by the Supreme Court in the case of Commr. of Income-tax v. Scindia Steam Navigation Co. Ltd., : [1961]42ITR589(SC) , the High Court acts purely in an advisory capacity on which the Tribunal ultimately acts, and

'it is of the essence of such jurisdiction that the Court can decide only questions which are referred to it and not any other question............If the true scope of thejurisdiction of the High Court is to give advice when it is sought by the Tribunal it stands to reason that the Tribunal should have had an occasion to consider the question so that it may decide whether it should refer it for the decision of the Court. How can it be said that the Tribunal should seek for advice on a question which it was not called upon to consider and in respect of which it had no opportunity of deciding whether the decision of the Court should be sought.'

The law as it emerges from the various cases decided by the Supreme Court is that the question which can be answered by this Court must first be a question that arises out of the order and secondly that It must be referred by the tribunal to the High Court for opinion. The question has certainly not been referred to this Court in the form suggested by the learned counsel, viz., whether on the facts and circumstances of the case the revision application could be deemed to be within limitation by applying the principles of Section 14(2) of the Limitation Act? What has been referred is not an all-comprehensive question as was referred in Bhanji Bhagwandas v. Commr. of Income-tax. Madras : [1968]67ITR18(SC) regarding the bar of limitation to the proceeding. Only a specific aspect of the question that affects the limitation has been referred to us, and it is regarding the applicability of Section 14 of the Limitation Act. The other question whether the revision could be treated as within limitation by the application of the principles of Section 14 of the Indian Limitation Act has not been referred.

34. The computation of time by application of Section 14 as such is a computation to be made on the basis of a statutory provision, while treating of the revision as within time by application of the principles of Section 14 of the Limitation Act must be on the principle of justice, equity and good conscience and cannot be on the basis of any statutory provision or on the basis of any right vested in the person who files the revision. Hence It cannot be held that the question referred to us includes the question aboutthe applicability of the principles of Section 14 of the Limitation Act.

35. The order passed in revision shows that no plea was raised by the assessee for the application of the provisions of Section 14 of the Limitation Act for computing the period of limitation. In the statement of case under Section 11 (1) of the U, P. Sales Tax Act it has been mentioned that it was urged on behalf of the assessee that the provisions of Section 14 of the Limitation Act were applicable. The question whether the Court had the power or duty to compute the period of limitation by applying the principles of Section 14 of the Limitation Act which depended on entirely different considerations was never canvassed and cannot be said either to arise out of the order of the Tribunal or to have been referred to this Court.

36. The assessee had never urged that in spite of the fact that the Judge (Revisions) Sales Tax acting under Section 10 of the Act was not a Court still he was entitled to the benefit of the principle of Section 14 of the Limitation Act for computing the period of limitation for filing of a revision under Section 10 of the U. P. Sales Tax Act. The Judge (Revisions) Sales Tax never applied his mind to this proposition and the Commissioner of Sales Tax did not get any opportunity to show that the principles of the provisions of Section 14 of the Limitation Act could not be resorted to while computing the period of limitation for the revision. It cannot, therefore, be said that the question now suggested was ever raised before the Tribunal or was dealt by it. In the case of : [1961]42ITR589(SC) (Supra) while summing up, the Supreme Court observed,

'............. (4) When a question of lawIs neither raised before a Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the findings given by it. Stating the position compendiously, it Is only a question raised before or decided by a Tribunal that could be held to arise out of its order.'

Therefore, the question whether the period of limitation for filing the revision could be computed by excluding the period taken by the restoration applications by applying the principle of Section 14 of the Limitation Act cannot be deemed to arise out of the order of the revisional authority.

37. Even if it be deemed that the question does arise out of the order and could be treated as having been referred to this Court the answer to the question will still be in the negative as the Judge (Revisions) Sales Tax has been given no authority under law to entertain a revision beyond the period of one year and six months even if conditions similar to thosecontemplated by Section 14 do exist. Section 10 (3-B) of the U. P. Sales Tax Act says that the application for revision

'shall be made within one year from the date of service of the order complained of but the revising authority may, on proof of sufficient cause, entertain an application within a further period of six months.'

There is thus a period of six months only left to be extended at the discretion of the revising authority. On proof of sufficient cause he has jurisdiction to extend the period by six months only. Pendency of proceedings of the nature contemplated by Section 14 of the Limitation Act may afford a sufficient cause for condoning the delay but the revising authority has been given no jurisdiction to extend the period beyond six months. The obvious reason is that revenue matters must be decided expeditiously. As the limitation has been fixed by the U. P. Sales Tax Act itself there is no scope for holding that the revising authority can entertain the revision even beyond the maximum period fixed under Section 10 (3-B) of the Act.

The principles of the provisions of any statute especially of the nature of Section 14 of the Limitation Act can be made applicable only if the statute be silent about the maximum period and a discretion be vested in the Tribunal for determining the period of limitation, and not otherwise. The principle that Section 14 of the Indian Limitation Act applies to proceedings before the arbitrator as laid down in Gopi Lal v. Lakhpat Rai, AIR 1923 PC 103 can have no applicability to the proceedings before the tribunals appointed under the U. P. Sales Tax Act for the reason that the proceedings before these authorities are not controlled or governed by the Indian Limitation Act. An arbitrator decides disputes between the parties and is for all purposes a Court, being a Court appointed by the parties concerned instead of being a statutory Court. The provisions of the Indian Limitation Act have been held to be applicable to claims before an arbitrator. The decision in the case of AIR 1929 PC 103 only rules that if a claim before the Arbitrator is to be governed and controlled by the provisions of the Limitation Act there was no reason for not applying the principles of Section 14 of the Limitation Act to proceedings before him. This case has been explained in : AIR1954Bom309 ..

If any claim or proceeding before the Arbitrator is to be governed by the period of limitation fixed in the Limitation Act by a process of analogy, then provisions of Section 14 of the Limitation Act will certainly be attracted for computing the period of limitation by the same analogy; but once the proceedings before a tribunal are notto be controlled by the period of limitation prescribed in the Limitation Act no provision of the Limitation Act can be brought into play for the computation of the period of limitation. It is only where the claim is to be governed by the provisions of the Limitation Act that the principles of Section 14 of the Limitation Act are by a fiction of law attracted. As the period of limitation for revisions under Section 10 of the U. P. Sales Tax Act has nothing to do with the Limitation Act, no provision of that Act including Section 14 will apply.

38. In the absence of any statutory provision for enlarging the time, the time cannot be enlarged on the basis of come, principle of equity, justice or good con-science. The principle of Section 14 by analogy can be applied by Courts on the basis of justice, equity and good conscience only if there is no maximum limit fixed by the statute for extending the period of limitation. If the tribunal applies the principle of Section 14 of the Limitation Act for computing the period of limitation for the revision, it will, in the guise of computing the period of limitation extend and enlarge the time for filing the revision, beyond the limit permitted by Section 10 (3-B) of the U. P. Sales Tax Act. When limitation is prescribed by a special law and the provisions of the nature of Section 14 have not been incorporated therein. It would be outside the scope of the tribunal created by the statute to import the pro-visions of Section 14 of the Limitation Act by analogy and thereby virtually amend the provision limiting its power to enlarge the period of limitation. The principle of Section 14 of the Limitation Act can be available only when limitation is to be computed under the Limitation Act by force of the statute itself and cannot be available to Tribunals when the period of limitation prescribed has no reference to the Limitation Act and is to be computed entirely with reference to and within the four corners of the provisions of the statute which creates the Tribunal.

39. In the result I answer the question referred to us in the negative. As no one has appeared for the respondent-assesses no order is made as to costs. The counsel's fee is fixed at Rs. 200.

BY THE COURT

40. In accordancewith the majority opinion, our answer to the question as reframed by us is that the time spent in prosecuting the application for setting aside the order of dismissal of appeals in default can be excluded from computing the period of limitation for filing the revision by the application of the principle underlying Section 14(2), Limitation Act. As the respondent has not appeared there is no order as to costs. Counsel's fee is fixed at Rs. 200.


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