Himachal Pradesh Value Added Tax Act, 2005: s. 48 – Exercise of revisional power u/s. 48 by the High Court – Condonation of delay in case a revision is filed beyond 90 days from the date of communication of the order – Applicability of ss. 5, 29 of the Limitation Act – Division Bench held that provision of s. 5 of the Limitation Act cannot be applied and the High Court cannot condone the delay – Sustainability of – Held: Held: Not sustainable – As the revision under the Act of 2005 lies to the High Court, the provisions of s. 5 of the Limitation Act are applicable, and there is no express exclusion of the provisions of s. 5 and as per s. 29(2), unless a special law expressly excludes the provision, ss. 4 to 24 of the Limitation Act are applicable – Thus, provisions of s. 5 are applicable to revisional provision u/s. 48 as they are not expressly excluded by the provisions under the Act of 2005 - Delay in filing of revision condoned – Limitation Act, 1963 – ss. 5, 29.
Remitting the matter to the High Court, the Court HELD: 1.1 The provisions contained in Section 29 of the Limitation Act deals with savings. The provisions in respect to the limitation prescribed for any suit, appeal or application by any special or local law, is different from the period prescribed by the Schedule, the provisions of Section 3 shall apply if the Schedule prescribed such period. The provisions contained in Sections 4 to 24 shall apply only in so far as and to the extent to which they are not expressly excluded. Section 5 of the Limitation Act deals with the extension of the prescribed period in particular exigencies. The provision applies to the Court and is excluded ETO, SUNDER NAGAR/ASSESSING AUTHY.
in the application to the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). It provides that if the Court is satisfied that the appellant/applicant had sufficient cause for not preferring the appeal or making the application within limitation, the Court may admit the same after the prescribed period. Explanation attached to Section 5 makes it clear that in case 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 Section 5. [Para 5, 6] [540-E; 541-A-B]
1.2 The provisions contained in section 45 of the Himachal Pradesh Value Added Tax Act, 2005 provides for an appeal from every original order passed under the Act or the Rules made thereunder. Sub–section (4) of section 45 provides appeal to be filed within 60 days, or such more extended period as the appellate authority may allow, for reasons to be recorded in writing. Thus, because of the provisions contained in section 45(4), the principles of section 5 would apply to an appeal before the appellate authority, which otherwise in the absence of specific provision would not have applied to authority. The revision is provided to the Commissioner suo motu under the provisions of section 46(1), and the period provided is 5 years for suo motu exercise of revisional power. However, the tribunal has the power to entertain application within 60 days from the date of communication of the order. When the provisions of section 48 are considered, revision is provided to the High Court, and an aggrieved person may within
90 days of the communication of such order, file a revision. Section 48(1) nowhere expressly excludes the applicability of provisions of the Limitation Act. The provisions of section 5 are applicable to Section 48 as they are not expressly excluded by the provisions under the Act of 2005. More so, in view of the provisions in section 45(4), which makes provisions to condone the delay like the Limitation Act, conferring power upon an authority also to condone delay. Further, suo motu revision has also been provided under section 46. In section 48, there is no express exclusion. Because of the scheme of the Act, it cannot be inferred that by implication, the provisions of section 5 of the Limitation Act are excluded. Provisions contained in section 29(2) would be attracted as there is no express exclusion or by implication, in view of the provisions of the Act of 2005. By virtue of the provisions contained in section 29(2), provisions of section 5 of the Limitation Act would apply to proceedings under Section 48 of the Act of 2005. [Para 21] [562-F-H; 563-A-C]
1.3 As the revision under the Act of 2005 lies to the High Court, the provisions of section 5 of the Limitation Act are applicable, and there is no express exclusion of the provisions of section 5 and as per section 29(2), unless a special law expressly excludes the provision, sections 4 to 24 of the Limitation Act are applicable. On consideraton of the scheme of the Himachal Pradesh VAT Act, 2005, it is apparent that its scheme is not ousting the provisions of the Limitation Act from its ken which makes principles of section 5 applicable even to an authority in the matter of filing an appeal but for the said provision the authority would not have the power to condone the delay. By implication also, it is apparent that the provisions of Section 5 of the Limitation Act have not been ousted; they have the play for condoning the limitation under Section 48 of the Act of 2005. Suo motu provision of revisional power is also provided to the Commissioner within
5 years. Thus, the intendment is not to exclude the Limitation Act. The delay in filing of revision is condoned. [Para 22] [563-E-H; 564-A]
1.4 The decision of the High Court cannot be said to be sustainable. The provisions of Section 5 of the Limitation Act are held applicable to the revisional provision under Section 48 of the Act of 2005. The impugned judgments and orders are set aside. [Para 23] [564-B]
Patel Brothers v. State of Assam & Ors. (2017) 2 SCC
350 ; Commissioner of Customs and Central Excise v. Hongo India Private Limited (2009) 5 SCC 791 ; Hukumdev Narain Yadav v. Lalit Narain Mishra (1974)
2 SCC 133 ; Sakuru v. Tanaji AIR 1985 SC 1279 ; Lata Kamat v. Vilas (1989) 2 SCC 613 ; State of W.B. & Ors. v. Kartick Chandra Das & Ors. (1996) 5 SCC
342 ; Mukri Gopalan v. Cheppilat Puthanpurayil ETO, SUNDER NAGAR/ASSESSING AUTHY.
Aboobacker (1995) 5 SCC 5 ; Mangu Ram v. Municipal Corporation of Delhi (1976) 1 SCC 392 ; Union of India v. Popular Construction Co. (2001) 8 SCC 470 ; Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department & Ors. (2008) 7 SCC
169 ; Commissioner of Customs & Central Excise v. Hongo India Pvt. Ltd. & Anr., (2009) 5 SCC 791 ; State of Madhya Pradesh & Anr. v. Anshuman Shukla (2014)
10 SCC 814 ; Patel Brothers v. State of Assam & Ors. (2017) 2 SCC 350 ; M. P. Steel Corporation v.
Commissioner of Central Excise (2015) 7 SCC 58 ; Commissioner of Customs, Central Excise, Noida v. Punjab Fibres Ltd., Noida (2008) 3 SCC 73 ; Singh Enterprises v. Commissioner of Central Excise, Jamshedpur & Ors. (2008) 3 SCC 70 ; Chaudharana Steels Private Ltd. v. Commissioner of Central Excise, Allahabad (2009) 15 SCC 183 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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