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Bharat Rubber and Allied Industries Vs. the State of Punjab and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Limitation
CourtPunjab and Haryana High Court
Decided On
Case Number Civil Writ Petition No. 3692 of 1977
Judge
Reported in[1980]46STC367(P& H)
AppellantBharat Rubber and Allied Industries
RespondentThe State of Punjab and ors.
Appellant Advocate S.K. Sarwal and; S.P. Jain, Advs.
Respondent Advocate D.S. Boparai, Deputy Adv.-General
Cases ReferredLucknow v. Parson Tools and Plants
Excerpt:
.....above, the appellate authority as well as the tribunal will have the power to extend the period of limitation provided under the act, for reasons to be recorded in writing. therefore, we are of the view that by making provision like section 20(4) in the sales tax act, the provisions of sections 5 and 12(2) of the limitation act were not sought to be excluded. 6. the learned government counsel then wanted to argue that there is no provision like section 20(4) in section 22 of the sales tax act under which application for reference lies and, therefore, he urges that the legislature never intended that there should be any extension of the period of limitation for an application for reference under section 22 of the sales tax act and as such sections 5 and 12(2) of the limitation..........:(1) whether the benefit of section 12(2) of the limitation act can be allowed to an applicant in reference application filed under section 22 of the punjab general sales tax act, for the days spent in obtaining the certified copy of the order of the tribunal against which reference is sought ?(2) if the benefit of section 12(2) cannot be allowed, whether the delay in filing the reference application can be condoned under section 5 of the limitation act by extending the period of limitation by the number of days spent in obtaining the certified copy of the order of the tribunal against which reference is sought ?2. the writ-petitioner, who is an assessee (hereinafter called the assessee), filed an application for reference under section 22(1) of the punjab general sales tax act, 1948.....
Judgment:

Gokal Chand Mital, J.

1. The following questions have been referred to the Full Bench for its opinion :

(1) Whether the benefit of Section 12(2) of the Limitation Act can be allowed to an applicant in reference application filed under Section 22 of the Punjab General Sales Tax Act, for the days spent in obtaining the certified copy of the order of the Tribunal against which reference is sought ?

(2) If the benefit of Section 12(2) cannot be allowed, whether the delay in filing the reference application can be condoned under Section 5 of the Limitation Act by extending the period of limitation by the number of days spent in obtaining the certified copy of the order of the Tribunal against which reference is sought ?

2. The writ-petitioner, who is an assessee (hereinafter called the assessee), filed an application for reference under Section 22(1) of the Punjab General Sales Tax Act, 1948 (hereinafter called the Sales Tax Act), of some questions of law for opinion of the High Court against the decision of the Sales Tax Tribunal dated 15th February, 1977. The limitation for filing of that application is sixty days from the passing of an order in appeal by the Tribunal as provided by Section 22(1) of the Sales Tax Act. The application for reference was filed on the twenty-seventh day after the expiry of sixty days and the delay in filing of the same was occasioned due to the fact that the assessee had filed an application for a certified copy of the judgment of the Tribunal against which reference was sought, which took the copying department thirty-five days in preparing the copy. Before the Sales Tax Tribunal, the counsel for the sales tax department took up the preliminary objection that the reference application was beyond the period of limitation and as such should be dismissed. That objection of the counsel for the department prevailed with the Tribunal and the reference application was dismissed as barred by time by order dated 20th September, 1977. Against this order of the Tribunal, the assessee has come up in writ petition under Article 226 of the Constitution of India.

3. Initially, the writ petition was heard by a Division Bench where a conflict in some Division Bench decisions of this Court was noticed and the matter was referred to the Full Bench for resolving the conflict. That is how the matter has been placed before us.

4. For the decision of the two questions referred it will have to be decided whether the provisions of Sections 5 and 12 of the Limitation Act, 1963 (hereinafter called the Limitation Act), would be applicable for appeals, revisions and reference applications under the Sales Tax Act. For this matter, reference may be made to Section 29(2) of the Limitation Act which is in the following terms:

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 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.

A reading of the aforesaid provision clearly shows that Sections 4 to 24 of the Limitation Act would be applicable to all special or local law in so far as, and to the extent to which, they are not expressly excluded by such special or local law. Before this matter is further elaborated, it would be worthwhile to notice that in the Indian Limitation Act, 1908, there was a different phraseology of Section 29(2) of the Act where provisions under the aforesaid sections were not applicable to special or local law unless it was so provided by such special or local law. Therefore, under the Limitation Act which is now in force, the aforementioned sections would automatically apply to all special or local law unless it is found that any of these sections is expressly excluded by such special or local law. Accordingly, if it is not shown under the Sales Tax Act that Sections 5 and 12(2) of the Limitation Act, with which we are concerned in this case, are expressly excluded by that Act, they would be applicable to the proceedings of appeal, revision and reference application under the Sales Tax Act by virtue of Section 29(2) of the Limitation Act. This view of ours finds support from the Supreme Court decision in Commissioner of Sales Tax, U. P. v. Madan Lal Das & Sons, Bareilly [1976] 38 S.T.C. 543 (S.C.). The following observations deserve to be noticed :

It is, however, contended by Mr. Manchanda that the U. P. Sales Tax Act constitutes a complete code in itself and as that Act prescribes the period of limitation for filing of revision petition, the High Court was in error in relying upon the provisions of Sub-section (2) of Section 12 of the Limitation Act, 1963. This contention, in our opinion, is wholly bereft of force.

* * * *There can be no manner of doubt that the U. P. Sales Tax Act answers to the description of a special or local law. According to Sub-section (2) of Section 29 of the Limitation Act, reproduced above, for the purpose of determining any period of limitation prescribed for any application by any special or local law, the provisions contained in Section 12(2), inter alia, shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law. There is nothing in the U. P. Sales Tax Act expressly excluding the application of Section 12(2) of the Limitation Act for determining the period of limitation prescribed for a revision application. The conclusion would, therefore, follow that the provisions of Section 12(2) of the Limitation Act of 1963 can be relied upon in computing the period of limitation prescribed for filing a revision petition under Section 10 of the U. P. Sales Tax Act.

5. The next point which arises for consideration is whether Sections 6 and 12 of the Limitation Act are expressly excluded by any provision in the Sales Tax Act. The only relevant provision which deserves to be noticed in this regard, and pointed out by the counsel for the parties, is contained in Section 20(4) of the Sales Tax Act, which is in the following terms :

20. (4) No appeal shall be entertained unless it is filed within sixty days from the date of communication of the order appealed against, or such longer period as the appellate authority may allow, for reasons to be recorded in writing.

Section 20 of the Sales Tax Act relates to giving right of appeal from the original order passed under the said Act as also giving a further right of appeal to the Tribunal from the appellate order. Accordingly, under Sub-section (4) reproduced above, the appellate authority as well as the Tribunal will have the power to extend the period of limitation provided under the Act, for reasons to be recorded in writing. But, this power in no way either expressly or by necessary intendment excluded the applicability of Sections 5 and 12(2) of the Limitation Act. Rather it gives a larger power to the appellate authority under the Sales Tax Act to entertain an appeal beyond the period of limitation even if it is found that the ground for extension of time is covered neither by Section 12(2) nor by Section 5 of the Limitation Act. Therefore, we are of the view that by making provision like Section 20(4) in the Sales Tax Act, the provisions of Sections 5 and 12(2) of the Limitation Act were not sought to be excluded.

6. The learned Government counsel then wanted to argue that there is no provision like Section 20(4) in Section 22 of the Sales Tax Act under which application for reference lies and, therefore, he urges that the legislature never intended that there should be any extension of the period of limitation for an application for reference under Section 22 of the Sales Tax Act and as such Sections 5 and 12(2) of the Limitation Act should not be applied to extend the period of limitation. We are unable to appreciate the argument in view of the clear provision contained in Section 29(2) of the Limitation Act and in the absence of an express provision to the contrary in the Sales Tax Act, Sections 4 to 24, inclusive of Sections 5 and 12 of the Limitation Act, would apply to all proceedings under the special law, i.e., the Sales Tax Act, in the present case. Whether the benefit of Section 12(2) of the Limitation Act can be given to reference application under Section 22 of the Sales Tax Act will be decided while deciding the first question.

7. Now we proceed to decide the first question referred for the opinion of the Full Bench. As held above, Section 12(2) of the Limitation Act would apply to proceedings under the Sales Tax Act. Whether benefit of Section 12(2) can be given to an application for reference or not, falls for our consideration and, in order to decide this point, it will be useful to reproduce Section 12 (1) and (2) of the Limitation Act:

12. Exclusion of time in legal proceedings.-(1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.

(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.

A reading of Sub-section (1) shows that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned with, shall be excluded. Since the word 'application' has been used in Sub-section (1) it will include all applications including reference applications and, therefore, in reckoning the period of limitation provided by Section 22(1) of the Sales Tax Act, the day on which the decision is given by the Tribunal would be excluded.

8. A reading of Sub-section (2) shows that the benefit of this sub-section has been allowed only to an appeal or an application for leave to appeal or for revision or for review of a judgment. Parliament has used the word 'application' in Sub-section (2) which has been used in Sub-section (1) and out of all applications which can possibly be filed, only applications for leave to appeal have been included in Sub-section (2). In other words, in Sub-section (2), the word 'application' has been qualified to application for leave to appeal only, which is not so qualified in Sub-section (1). Even in Section 29(2) of the Limitation Act, the words 'suit, appeal or application' have been used, but in Section 12(2) instead of the word 'application', it has been limited to an application for leave to appeal only.

9. Parliament was well aware of the difference between application and an application for leave to appeal and has purposely used different words in different sections and sub-sections of the Limitation Act and that intention. of Parliament must be carried out by the courts in interpreting the various provisions of the' Limitation Act. In doing so, we are of the opinion that while Section 12(1) of the Limitation Act would be applicable to all applications, Section 12(2) would be applicable only to an application for leave to appeal apart from an appeal, revision or a review petition and not to application for reference.

10. The aforesaid view finds further support from the wording of Section 12(2) of the 1908 Limitation Act, which was in the following terms :

12. (2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal, and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded.

A comparison of the aforesaid provision with the present provision shows that Parliament, while enacting the new provision of Section 12(2) of the present Limitation Act, has included the words 'or for revisions' apart from what was contained in the old Section 12(2) of the 1908 Limitation Act. If Parliament wanted to apply Section 12(2) to all applications then the word 'application' alone would have been used in Section 12(2) and the words 'for leave to appeal' would have been deleted. Therefore, it is clear that only revisions were sought to be included under Section 12(2) for giving benefit of this provision to them, but the benefit was not enlarged to all applications including applications for reference under the Sales Tax Act.

11. The learned counsel for the assessee has urged that an application for reference should be deemed to be an application for leave to appeal. This argument has to be noticed to be rejected as it does not appear to us to be sound. An application for leave to appeal is quite different from an application for reference as in the first case after leave to appeal is granted the appellate court would be able to set aside, modify or affirm the decision of the court below but if an application for reference is allowed, some questions of law are referred for the opinion of the High Court and the High Court neither affirms nor reverses the decision of the Tribunal against which reference is sought. The High Court only gives opinion on questions of law framed and that opinion goes back to the Tribunal which passes the final order on the basis of the opinion given by the High Court. Accordingly, we are of the view that an application for reference cannot be treated as an application for leave to appeal for purposes of Section 12(2) of the Limitation Act.

12. The question whether Section 12(2) of the Limitation Act would be applicable to a reference application, came up for pointed consideration before a Full Bench of five Judges of the Allahabad High Court in Gopaladas Sarvadayal v. Commissioner of Sales Tax, U.P. A.I.R. 1956 All. 305 (F.B.) There it was held that a reference application is not covered by Section 12(2) of the Limitation Act and we approve of that decision as that is in consonance with the view taken by us.

13. On the aforesaid point, there are the following four Division Bench decisions of this Court, which deserve to be noticed: (1) Piare Lal Khushbakhat Rai v. State of Punjab [1971] 27 S.T.C. 398, (2)' Avtar Singh Ranjit Singh, Ludhiana v. State of Punjab [1972] 30 S.T.C. 116, (3) Gamsha Pipe Ltd. v. State of Haryana [1977] 39 S.T.C. 546 and (4) State of Punjab v. Pansotra Radio Corporation, Dera Baba Nanak General Sales Tax Reference No. 11 of 1973 decided on 18th October, 1976 (Punjab and Haryana High Court).

In the Piare Lal Khushbakhat Rai's case [1971] 27 S.T.C. 398, the question of applicability of Section 12(2) of the Limitation Act fell for consideration as by excluding the days spent in obtaining the certified copy of the Tribunal's order the reference application was within time and without that it was beyond time. The only relevant discussion in that case is as follows :

Reliance has been placed by the learned Tribunal on Govindji v. Commissioner of Sales Tax, Madhya Pradesh [1955] 6 S.T.C. 183, which supports that view. But, a reference to the commentary by Chitaley on the Indian Limitation Act shows that there is a conflict of decisions on this point among the various High Courts. Even if technically Section 12(2) of the Indian Limitation Act did not apply, the delay in filing the application could have been condoned under Section 5 of the Indian Limitation Act by extending the period of limitation by the number of days spent in obtaining the certified copy. The Lahore view as stated in Muhammad Hayat Haji Muhammad Sardar v. Commissioner of Income-tax, Punjab A.I.R. 1929 Lah. 170, was definitely in favour of allowing the period spent in obtaining a certified copy of the order while computing the period of limitation for a reference application.

The aforesaid discussion shows that it was not firmly decided whether Section 12(2) of the Limitation Act would be applicable to the reference application and as such this decision is of no assistance.

14. In the Avtar Singh Ranjit Singh's case [1972] 30 S.T.C. 116, there is no discussion about Section 12(2) of the Limitation Act. In that case, copy of the order of the Sales Tax Tribunal was not supplied to the assessee and he applied for the same on getting intimation of the decision and it was held that the limitation for filing an application under Section 22(2) of the Sales Tax Act would run only from the date the copy of the order was supplied to the assessee and, in doing so, the decision in the Piare Lal Khushbakhat Rai's case [1971] 27 S.T.C. 398 was followed. Accordingly, this decision is also of no help in deciding question No. (1).

15. In the Gamsha Pipe Ltd.'s case [1977] 39 S.T.C. 546, the Sales Tax Tribunal referred to this Court for opinion the following question :

Whether, in the facts and circumstances of this case, Section 5 read with Section 29(2) of the Indian Limitation Act, 1963, is applicable to proceedings before the Sales Tax Tribunal under the Haryana General Sales Tax Act, 1973 ?

The Bench disposed of the reference in the following words :

There cannot be the slightest doubt that this question as framed has to be answered against the assessee in view of the judgment in Commissioner of Sales Tax, Uttar Pradesh, Lucknow v. Parson Tools and Plants, Kanpur [1975] 35 S.T.C. 413 (S.C.).

A reading of the Supreme Court decision in the Parson Tools' case* shows that the applicability of Section 14(2) of the Limitation Act came up for consideration where time spent in prosecuting an appeal under some rule of the U. P. Sales Tax Rules for setting aside an order of dismissal of appeal in default was sought to be excluded in computing the period of limitation for filing an appeal against the order dismissing the appeal in default. The point which is before us was not for consideration of the Supreme Court in the aforesaid case. The reason for applying Section 14 of the Limitation Act to proceedings under the U. P. sales tax law was that the authorities are merely administrative tribunals and not courts. On the argument that the principles underlying Section 14(2) of the Limitation Act could be applied for extension of limitation on the general principles of justice, equity and good conscience, it was held in the peculiar wording of Section 10(3-B) of the U. P. sales tax law that the scheme of the Act was such that the time could be extended by a further period of six months only and even if sufficient cause was shown beyond that period, the Sales Tax Tribunals had no jurisdiction to extend the period beyond six months which clearly negatived the applicability of the underlying principles of Section 14(2) of the Limitation Act.

16. The U. P. sales tax law was also under consideration of the Supreme Court in the Madan Lal Das & Sons' case [1976] 38 S.T.C. 543 (S.C.), where the question before us was specifically dealt with and it was held that by virtue of Section 29(2) of the Limitation Act, the provisions of Sections 4 to 24 of that Act became applicable to the U. P. sales tax law. It was certainly a special or local law and on that basis it was held that Section 12(2) of the Limitation Act was applicable to revisions under the U. P. sales tax law. The argument that the U. P. sales tax law constitutes a complete code in itself and the period of limitation for revision has been prescribed therein and, therefore, Section 12(2) of the Limitation Act be not applied, was specifically held to be without force. Accordingly, the decision in the Parson Tools' case [1975] 35 S.T.C. 413 (S.C.) is not the correct decision to be followed in this case in the face of a direct decision of the Supreme Court in the Madan Lal Das & Sons' case [1976] 38 S.T.C. 543 (S.C.), and in view of the latter judgment of the Supreme Court, we are of the view that the Division Bench decision of this Court in the Gamsha Pipe Ltd.'s case [1977] 39 S.T.C. 546 is not the correct decision as it runs counter to the Supreme Court decision in the Madan Lal Das & Sons' case [1976] 38 S.T.C. 543 (S.C.) and we hereby overrule the same.

17. Coming to the Pansotra Radio Corporation's case General Sales Tax Reference No. 11 of 1973 decided on 18th October, 1976 (Punjab and Haryana High Court), an application for reference under Section 22 of the Sales Tax Act was filed two days beyond the prescribed period of sixty days and when that reference came to this Court, a preliminary objection was raised on behalf of the respondent that the reference is incompetent as the same was barred by two days. Without going into any other matter, the reference was declined by a very short order and as such that case is of no assistance in deciding the questions raised before us. If for some reasons an inference is to be deduced from this decision that Sections 5 to 24 of the Limitation Act would not be applicable to proceedings under the Sales Tax Act then we would hold that this decision also does not lay down the correct law.

18. Therefore, the ultimate decision of the first question is that the days spent in obtaining a certified copy of the order of the Tribunal for filing reference under Section 22 of the Sales Tax Act cannot be excluded by taking the benefit of Section 12(2) of the Limitation Act.

19. Now the second question referred to the Full Bench arises for consideration. In the earlier part of the judgment, it has already been found that Section 5 of the Limitation Act would apply to the proceedings under the Sales Tax Act. Since Section 5 of the Limitation Act would be applicable to the proceedings under the Sales Tax Act, therefore the authorities under the Sales Tax Act would be entitled to extend the period of limitation by the number of days spent in obtaining the certified copy of the order against which appeal, revision or reference is made or sought, as the case may be. This view of ours finds support from the Division Bench decision of this Court in the Piare Lal Khushbakhat Rai's case [1971] 27 S.T.C. 398 and we approve of the same. However, the decision of this Court in the Gamsha Pipe Ltd.'s case [1977] 39 S.T.C. 546 does not lay down correct law and is overruled in view of the specific decision of the Supreme Court in the Madan Lal Das & Sons' case [1976] 38 S.T.C. 543 (S.C.). The view taken by us with regard to the Pansotra Radio Corporation's case General Sales Tax Reference No. 11 of 1973 decided on 18th October, 1976 (Punjab and Haryana High Court), while considering the first question, would be applicable in answer to the second question also.

20. Therefore the answer to the second question is that the delay caused in filing of the reference application due to obtaining of the certified copy of the order of the Tribunal against which reference is sought can be condoned under Section 6 of the Limitation Act.

21. In the result, our final conclusions are as follows:

(1) The answer to the first question is in the negative, that is, that the benefit of Section 12(2) of the Limitation Act cannot be allowed to an applicant in a reference application filed under Section 22 of the Punjab General Sales Tax Act for excluding the time spent in obtaining the certified copy of the order of the Tribunal against which reference is sought.

(2) The answer to the second question is in the affirmative, that is, the delay caused in filing of the reference application due to obtaining of the certified copy of the order of the Tribunal against which reference is sought can be condoned under Section 5 of the Limitation Act.

22. The case will now go back to the Division Bench along with C. W. P. No. 301 of 1980.

S.S. Sandhawalia, C.J.

23. I agree.

R.N. Mittal, J.

24. I agree.


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