Gujarat High Court
Todays Petrotech Limited vs Joint Commissioner & on 13 April, 2017
Author: M.R. Shah
Bench: M.R. Shah, B.N. Karia
O/TAXAP/227/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL NO. 227 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
======================================
1 Whether Reporters of Local Papers may be YES
allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair NO
copy of the judgment ?
4 Whether this case involves a substantial NO
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
======================================
TODAYS PETROTECH LIMITED....Appellant(s)
Versus
JOINT COMMISSIONER & 1....Respondent(s)
======================================
Appearance:
MS VAIBHAVI K PARIKH, ADVOCATE for the Appellant(s) No. 1
MR DHAVAL D VYAS, ADVOCATE for the Respondent(s) No. 1-2
======================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 13/04/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) Page 1 of 21 HC-NIC Page 1 of 21 Created On Tue Aug 15 23:08:35 IST 2017 O/TAXAP/227/2017 JUDGMENT [1.0] ADMIT. Shri Dhaval Vyas, learned advocate waives service of notice of admission on behalf of the respondents.
[2.0] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Customs, Excise & Service Tax Appellate Tribunal, West Zone Bench at Ahmedabad (hereinafter referred to as the "learned tribunal") dated 18/08/2016 in Appeal No.ST/11837/2015 by which the learned tribunal has dismissed the said Appeal, which was preferred beyond the period of three months, on the ground that as held by the Hon'ble Supreme court in the case of Singh Enterprise Vs. Commissioner of Central Excise, Jamshedpur reported in 2008 (221) E.L.T. 163 (S.C) Commissioner (Appeals) is not empowered to condone any delay further than what he has been permitted to condone as per the law, assessee has preferred the present Tax Appeal with the following proposed questions of law;
(A) Whether, in the facts and circumstances of the case, the Customs, Excise and Service Tax Appellate Tribunal was right in law in rejecting the Appeal stating that there is no infirmity in the order of the Commissioner (Appeals) despite the fact that the appellant had filed Appeal before the Commissioner (Appeals) on the 90th day i.e. within the prescribed time limit?
(B) Whether, in the facts and circumstances of the case, the Customs, Excise and Service Tax Appellate Tribunal was right in law in interpreting Page 2 of 21 HC-NIC Page 2 of 21 Created On Tue Aug 15 23:08:35 IST 2017 O/TAXAP/227/2017 JUDGMENT the term "month" as "British calender month" in absence of any specific definition instead of interpreting the term "month" as "period of 30 days"?
(C) Whether in the facts and circumstances of the case, the order passed by the Customs, Excise and Service Tax Appellate Tribunal is perverse inasmuch the Appeal has been dismissed merely on the technical count being delay in filing Appeal against the Order-in-Original rather than the issue being decided on merits?
[3.0] The facts leading the present Tax Appeal in nutshell are as under;
[3.1] Feeling aggrieved and dissatisfied with the Order-in- Appeal passed by the learned Commissioner (Appeal-I), Vadodara dated 22/06/2015 by which the learned first appellate authority rejected the said Appeal, assessee preferred Appeal before the learned tribunal. By the impugned judgment and order the learned tribunal has confirmed the order passed by the learned Commissioner (Appeals) confirming the view taken by the learned Commissioner (Appeals) that the Commissioner (Appeals) is not empowered to condone any delay beyond the condonable period of one additional month after the allowed two months for filing the Appeal.
Feeling aggrieved and dissatisfied with the impugned Order passed by the learned tribunal, the assessee has preferred the present Tax Appeal with the aforestated Page 3 of 21 HC-NIC Page 3 of 21 Created On Tue Aug 15 23:08:35 IST 2017 O/TAXAP/227/2017 JUDGMENT questions of law.
[4.0] Shri Tushar Hemani, learned advocate has appeared on behalf of the appellant and Shri Dhaval Vyas, learned advocate has appeared on behalf of the respondents.
[5.0] Shri Tushar Hemani, learned advocate appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case the learned tribunal has materially erred in dismissing the Appeal preferred by the appellant confirming the Order-In-Appeal passed by the learned Commissioner (Appeals) rejecting the Appeal against the Order-In-Original on the ground that beyond the condonable period of one additional month after the allowed two months for filing the Appeal the Commissioner (Appeals) has no jurisdiction to condone the delay.
[5.1] Shri Tushar Hemani, learned advocate appearing on behalf of the appellant has vehemently submitted that in the present case the learned tribunal has materially erred in not properly appreciating the fact that the assessee preferred the Appeal on the 90th day. It is submitted that therefore the learned tribunal ought not to have confirmed the order passed by the learned Commissioner (Appeals) taking the view that the Appeal was preferred beyond condonable period of one additional month after the allowed two months for filing the Appeal.
[5.2] It is further submitted by Shri Tushar Hemani, learned advocate appearing on behalf of the appellant that in the facts and circumstances of the case, the learned tribunal Page 4 of 21 HC-NIC Page 4 of 21 Created On Tue Aug 15 23:08:35 IST 2017 O/TAXAP/227/2017 JUDGMENT ought to have considered /appreciated that the term "month" mentioned in Clause 85 (3A) of the Finance Act, 1994, which means "period of 30 days". It is submitted that the total period of "three months" i.e. (two months + one month) means "period of 90 days". It is submitted that if the learned tribunal would have considered and /or interpreted Clause 85 (3A) of the Finance Act, 1994, in that case, it can be said that the Appeal was preferred within the condonable period of one additional month after the allowed two months for filing the Appeal. It is vehemently submitted by Shri Tushar Hemani, learned advocate appearing on behalf of the appellant that as per the law, learned Commissioner (Appeals) has powers to condone the delay of "one month" in filing the Appeal beyond the prescribed time limit i.e. "two months", which implies that if the Appeal has been filed within "three months" i.e. within the period of 90 days, learned Commissioner (Appeals) is empowered to condone the delay in filing the Appeal and decide the issue on merits. It is submitted that in the present case the appellant preferred Appeal before the learned Commissioner (Appeals) on the 90th day, and therefore, if the term "three months" is considered as "90 days", the learned Commissioner (Appeals) was empowered to condone the delay. It is submitted that therefore both the learned Commissioner (Appeals) as well as the learned tribunal have erred in dismissing the Appeal preferred by the appellant solely on the ground that the Appeal preferred by the appellant is beyond the condonable period of one additional month after the allowed two months for filing the Appeal.
[5.3] It is further submitted by Shri Tushar Hemani, learned advocate appearing on behalf of the appellant that in Page 5 of 21 HC-NIC Page 5 of 21 Created On Tue Aug 15 23:08:35 IST 2017 O/TAXAP/227/2017 JUDGMENT absence of definition of the term "month" in the Finance Act, 1994 relevant to the Service Tax, the term must now be interpreted as "British calender month" as defined under Section 3(35) of the General Clauses Act, 1897. In support of his above submission, Shri Tushar Hemani, learned advocate has heavily relied upon the decision of the Division Bench of this Court in the case of Commissioner of Income-tax-I Vs. Arvind Mills Ltd. reported in [2011] 16 taxmann.com 291 (Guj.) It is submitted that in the aforesaid decision in the case of Arvind Mills Ltd. (Supra) while considering Section 244A of the Income Tax Act and considering the term "month" in Section 244A of the Income Tax Act the Division Bench has observed and held that the term "month" must be given ordinary sense of term, i.e. 30 days of period and not British Calender month as defined under Section 3(35) of the General Clause Act, 1897. It is further submitted by Shri Tushar Hemani, learned advocate appearing on behalf of appellant that if the word "three months" is considered and /or interpreted as "ninety days", as suggested on behalf of the revenue, in that case, there shall be uncertainty, as in a given case there shall be different number of days in calender month i.e. 30 days, 31 days, 28 /29 days as the case may be. It is submitted that therefore the provision is required to be interpreted in such a manner that it avoids uncertainty.
[5.4] It is further submitted by Shri Tushar Hemani, learned advocate appearing on behalf of the appellant that in the taxing statute the statute is required to be interpreted liberally and it must be justice oriented, which widens the scope of justice. It is submitted that in the taxing statute when two interpretations are possible, in that case, the Page 6 of 21 HC-NIC Page 6 of 21 Created On Tue Aug 15 23:08:35 IST 2017 O/TAXAP/227/2017 JUDGMENT interpretation, which may lean in favour of the assessee must be adopted. It is submitted that therefore assuming that two interpretations with respect to the term "month" are possible, interpretation, which is in favour of the assessee must be adopted. In support of his above submissions, he has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Pratap Singh Vs. State of Jharkhand and Another reported in (2005) 3 SCC 551.
[5.5] Shri Tushar Hemani, learned advocate appearing on behalf of the appellant has also heavily relied upon the decision of the Calcutta High Court in the case of Ashoke Dasgupta Vs. United Bank of India and Ors reported in (2000) IIILLJ 1489 Cal as well as the decision of the Bombay High Court in the case of Bombay Gas Public Ltd. Vs. Laxman Dhaku and Others reported in 1997 (1) LLN 193. in support of his above submissions that the word "three months" mentioned in Clause 85 of the General Clauses Act, 1897 of the Finance Act be read as "ninety days".
Making the above submissions and relying upon the above decisions, it is requested to admit /allow the present Tax Appeal.
[6.0] The present Tax Appeal is vehemently opposed by Shri Dhaval Vyas, learned advocate appearing on behalf of the respondents. It is vehemently submitted by Shri Dhaval Vyas, learned advocate appearing on behalf of the respondents that as such the issue involved in the present Tax Appeal is now not res integra and has been concluded by the decision of the Hon'ble Supreme Court in the case of State of H.P. and Anr Vs. M/s. Himachal Techno Engineers and Anr reported in Page 7 of 21 HC-NIC Page 7 of 21 Created On Tue Aug 15 23:08:35 IST 2017 O/TAXAP/227/2017 JUDGMENT 2010 AIR SCW 5088. It is submitted that similar contention has been negatived by the Hon'ble Supreme Court and it is held that the period of "three months" mentioned in Section 34(3) of the Arbitration and Conciliation Act, 1996 cannot be considered as "ninety days". It is submitted that identical question came to be considered by the Division Bench of the Allahabad High Court in the case of Commissioner of Customs & Central Excise, Allahabad Vs. Ashok Kumar Tiwari reported in 2015 (37) STR 727 (All.). It had an occasion to consider the provisions of Section 85(3) of the Finance Act, 1994 and the Division Bench of the Allahabad High Court has held that once the Legislature has used the expression "three months" both in substantive part of Sub- Section (3) of Section 85 IBID as well as in its proviso, it would not be open for the Court to substitute the words "three months" by words "ninety days". It is further observed and held by the Division Bench that to do so would amount to rewriting the legislative provision, which is not permissible. It is submitted that therefore in the facts of the case and when the Appeal before the learned Commissioner (Appeals) was preferred beyond the period of "three months" i.e. beyond the condonable period of one additional month after the allowed two months for filing the Appeal, no error has been committed by the learned tribunal in dismissing the Appeal and confirming the order passed by the learned Commissioner (Appeals) rejecting the Appeal on the ground that considering Clause 85(3A) of the Finance Act, 1994 he has no jurisdiction to condone the delay beyond the condonable period.
[6.1] Now so far as the reliance placed upon the decisions of the Bombay High Court and Calcutta High Court Page 8 of 21 HC-NIC Page 8 of 21 Created On Tue Aug 15 23:08:35 IST 2017 O/TAXAP/227/2017 JUDGMENT and the decision of the Division Bench of this Court by the learned advocate appearing on behalf of the appellant is concerned, it is submitted that none of the aforestated decisions relied upon by the learned advocate appearing on behalf of the appellant shall be applicable to the facts of the case on hand.
Making the above submissions, it is requested to dismiss the present Tax Appeal and answer the question in favour of the revenue and against the assessee.
[7.0] Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the learned Commissioner (Appeals) rejected the Appeal preferred by the appellant, which was preferred against the Order-in-Original, on the ground that the Appeal preferred was time barred and beyond the condonable period of one additional month after the period of filing the Appeal as per Clause 85(3A) of the Finance Act, 1994.
Clause 85(3A) of the Finance Act, 1994 reads as under;
"3(A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter:
Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting Page 9 of 21 HC-NIC Page 9 of 21 Created On Tue Aug 15 23:08:35 IST 2017 O/TAXAP/227/2017 JUDGMENT the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month."
[7.1] It is an admitted position that the Appeal preferred by the appellant before the learned Commissioner (Appeals) was beyond the period of three months. The Order-in-Original was received by the assessee on 05/02/2015. Therefore, the normal period of filing the Appeal with the learned Commissioner (Appeals) expires on 04/04/2015. Considering Clause 85 (3A) of the Finance Act, 1994, learned Commissioner (Appeals) is empowered to condone the delay of only one month from the said date of 04/04/2015, which means he can condone the delay for sufficient reasons up to 04/05/2015. In the present case, Appeal was filed only on 06/05/2015 i.e. beyond the condonable period of one additional month after the allowed two months of filing the Appeal, and therefore, the learned Commissioner (Appeals) rejected the said Appeal by observing that considering Clause 85(3A) of the Finance Act, 1994 he has no jurisdiction to condone the delay beyond the condonable period of one month. However, it is the case on behalf of the appellant that the word "month" is to be read and /or considered as "30 days". Meaning thereby the word "three months" mentioned in Clause 85(3A) of the Finance Act, 1994 shall be read as "ninety days" and not as per the "British Calender month" as per Section 3(35) of the General Clauses Act, and therefore, as the Appeal was preferred on the 90th day (may be beyond the period of three months) the learned Commissioner (Appeals) was authorised to condone the delay on sufficient cause being shown.
Page 10 of 21
HC-NIC Page 10 of 21 Created On Tue Aug 15 23:08:35 IST 2017
O/TAXAP/227/2017 JUDGMENT
[7.2] Identical question came to be considered by the
Hon'ble Supreme Court in the case of State of H.P. and Anr Vs. M/s. Himachal Techno Engineers and Anr (Supra). In the said decision the Hon'ble Supreme Court had an occasion to consider the word "three months" mentioned in Section 34(3) of the Arbitration and Conciliation Act, 1996. Before the Hon'ble Supreme Court, High Court had held that "three months mentioned in Section 34(3) of the Arbitration and Conciliation Act, 1996 refers to the period of "ninety days", but the Hon'ble Supreme Court did not agree with the same and held that such a view is erroneous. Before the Hon'ble Supreme Court the question was whether the period of "three months" can be counted as "ninety days"? While holding that the word "three months" mentioned in Section 34(3) of the Arbitration and Conciliation Act, 1996 cannot be referred to the period of "ninety days", Hon'ble Supreme Court while answering the aforesaid question has observed in paragraph 9 to 11 as under;
"9. The High Court has held that "three months"
mentioned in Section 34(3) of the Act refers to a period of 90 days. This is erroneous. A "month" does not refer to a period of thirty days, but refers to the actual period of a calendar month. If the month is April, June, September or November, the period of the month will be thirty days. If the month is January, March, May, July, August, October or December, the period of the month will be thirty one days. If the month is February, the period will be twenty nine days or twenty eight days Page 11 of 21 HC-NIC Page 11 of 21 Created On Tue Aug 15 23:08:35 IST 2017 O/TAXAP/227/2017 JUDGMENT depending upon whether it is a leap year or not.
10. Sub-Section (3) of Section 34 of the Act and the proviso thereto significantly, do not express the periods of time mentioned therein in the same units. Sub-Section (3) uses the words "three months" while prescribing the period of limitation and the proviso uses the words "thirty days" while referring to the outside limit of condonable delay. The legislature had the choice of describing the periods of time in the same units, that is to describe the periods as "three months" and "one month"
respectively or be describing the periods as "ninety days" and "thirty days" respectively. It did not do so. Therefore, the legislature did not intend that the period of three months used in sub-Section (3) to be equated to 90 days, nor intended that the period of thirty days to be taken as one month.
11. Section 3(35) of the General Clauses Act, 1897 defines a month as meaning a month reckoned according to the British calender. In Dodds V. Walker (1981) 2 AII ER 609, the House of Lords held that in calculating the period of a month or a specified number of months that had elapsed after the occurrence of a specified event, such as the giving of a notice, the general rule is that the period ends on the corresponding date in the appropriate subsequent month irrespective of whether some months are longer than others. To the same effect is the decision of this Court in Bibi Page 12 of 21 HC-NIC Page 12 of 21 Created On Tue Aug 15 23:08:35 IST 2017 O/TAXAP/227/2017 JUDGMENT Salma Khatoon v. State of Bihar (2001) 7 SCC 197 :
(AIR 2001 SC 3596 : 2001 AIR SCW 3346). Therefore when the period prescribed is three months (as contrasted from 90 days) from a specified date, the said period would expire in the third month on the date corresponding to the date upon which the period starts. As a result, depending upon the months, it may mean 90 days or 91 days or 92 days or 89 days."
[7.3] Identical question also came to be considered by the Division Bench of Allahabad High Court in the case of Ashok Kumar Tiwari (Supra) and while interpreting Section 85(3) of the Finance Act, 1994, Allahabad High Court has observed and held in paragraph 4 to 7 as under;
"The first issue, which has arisen in the appeal, relates to the construction of the provisions of Section 85 of the Act of 1994. Section 85 reads as under;
"85. Appeals to the Commissioner of Central Excise (Appeals).
[(1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals).] (2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner.
(3) An appeal shall be presented within three Page 13 of 21 HC-NIC Page 13 of 21 Created On Tue Aug 15 23:08:35 IST 2017 O/TAXAP/227/2017 JUDGMENT months from the date of receipt of the decision or order of [such adjudicating authority], relating to Service Tax, interest or penalty under this Chapter [, made before the date on which the Finance Bill, 2012 receives the assent of the President]:
Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months :
[(3A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to Service Tax, interest or penalty under this Chapter:
Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month.] (4) The Commissioner of Central Excise (Appeals) shall hear and determine the appeal and, subject to the provisions of this Chapter, pass such orders as he thinks fit and such orders may include an order enhancing the Service Tax, interest or penalty:
Provided that an order enhancing the Service Tax, Page 14 of 21 HC-NIC Page 14 of 21 Created On Tue Aug 15 23:08:35 IST 2017 O/TAXAP/227/2017 JUDGMENT interest or penalty shall not be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement.
(5) Subject to the provisions of this Chapter, in hearing the appeals and making order under this section, the Commissioner of Central Excise (Appeals) shall exercise the same powers and follow the same procedure as he exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944 (1 of 1944)."
5. Under sub-section (3) of Section 85, a period of three months is the limitation for filing an appeal against an order of adjudication, and the limitation commences to run from the date of receipt of the decision or order of the adjudicating authority relating to Service Tax, interest or penalty made before the date on which the Finance Bill, 2012 receives the assent of the President. In the present case, the order of adjudication was made on 15 September 2011. Under the proviso to sub-section (3) of the Act of 1994, the Commissioner of Central Excise (Appeals) is empowered, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within a period of three months, to allow it to be presented within a further period of three months. Parliament has used the expression "three months" both while quantifying the original period of limitation as well as while defining the extent to which a delay Page 15 of 21 HC-NIC Page 15 of 21 Created On Tue Aug 15 23:08:35 IST 2017 O/TAXAP/227/2017 JUDGMENT beyond three months can be condoned. Now, at the outset, it must be noted that the maximum period within which an appeal can be presented before the Commissioner of Central Excise (Appeals), can in no circumstances, exceed six months. This period of six months is comprised of the original period of three months and, if sufficient cause is shown, a further period of three months beyond which the delay cannot be condoned. Once the outer limit of time as stipulated in sub-section (3) of Section 85 has expired, it is not open to the Commissioner (Appeals), or for that matter, to any higher forum, to condone the delay utilizing the provisions of Section 5 of the Limitation Act, 1963. This position in law is not in dispute in view of the judgment of the Supreme Court in Commissioner of Customs and Central Excise Vs Hongo India Private Limited - JT 2009 7 SC 83 = 2009 (236) E.L.T. 417 (S.C.). The issue, however, that arises in the present case is whether the expression "three months" must be considered to mean 90 days or three calendar months.
6. In our view, the question does not suffer from any ambiguity. In construing fiscal legislation, the duty of the Court is to interpret the statute and the language used by the legislature by giving to it a plain and natural meaning. Significantly, where the legislature intends to define the period of limitation with regard to the number of days, it does so specifically. In the case of the Act of 1994, Section Page 16 of 21 HC-NIC Page 16 of 21 Created On Tue Aug 15 23:08:35 IST 2017 O/TAXAP/227/2017 JUDGMENT 85 has defined the period of limitation as well as the power to condone the delay with regard to a stipulation in terms of months and such a stipulation can only mean a calendar month. Once the legislature has used the expression "three months" both in the substantive part of sub-section (3) of Section 85 as well as in its proviso, it would not be open for the Court to substitute the words "three months" by the words "ninety days". To do so, would amount to rewriting the legislative provision, which is impermissible.
7. The expression "month" is also defined in Section 3(35) of the General Clauses Act, 1897 (the Act of 1897) to mean a month reckoned according to the British calendar. The issue before the Court is not res integra. A similar provision came up for consideration before a Bench of three learned Judges of the Supreme Court in Tamal Lahiri Vs Kumar P.N. Tagore - AIR 1978 SC 1811. In that case, the provisions of Section 533 of the Bengal Municipal Act, 1932, stipulated a period of limitation for filing a prosecution under the Act by providing that no prosecution for an offence under the Act, shall be instituted except within six months next after the commission of such offence. Explaining the import of the expression "six months", the Supreme Court observed as follows;
"6...The only question which then requires examination is whether the prosecution which was filed on June 19, 1968, was instituted as Page 17 of 21 HC-NIC Page 17 of 21 Created On Tue Aug 15 23:08:35 IST 2017 O/TAXAP/227/2017 JUDGMENT required by S. 533, "within six months next after the commission" of the offence. An argument was raised in the High Court that 'six months' must be construed to mean 180 days and not six calendar months. The High Court does not appear to have accepted that submission. There the High Court is right, because S. 3(27) of the Bengal General Clauses Act, I of 1899, defines 'a month' to mean a month reckoned according to the British calendar. The expression 'six months' which occurs in S. 533 of the Act must accordingly be construed to mean six calendar months and not 180 days. The offence, being alleged to have been committed on the expiry of December 20, 1967, and the prosecution having been instituted on June 19, 1968, the provisions of S. 533 must be held to have been duly complied with.""
The Division Bench of the Allahabad High Court by observing above has specifically held that the expression "three months" under Section 85(3) of the Finance Act, 1994 cannot be considered to be "ninety days" and it must be construed as three calender months.
[7.4] As such, we are in complete agreement with the view taken by the Allahabad High Court in the case of Ashok Kumar Tiwari (Supra), and therefore, it cannot be said the learned Commissioner (Appeals) has committed any error in rejecting the Appeal on the ground of limitation by observing Page 18 of 21 HC-NIC Page 18 of 21 Created On Tue Aug 15 23:08:35 IST 2017 O/TAXAP/227/2017 JUDGMENT that beyond the condonable period of one month after the prescribed period of two months to prefer the Appeal he has no jurisdiction to condone the delay beyond the condonable period.
[7.5] Now so far as the reliance placed upon the decision of the Division Bench of this Court in the case of Arvind Mills Ltd. (Supra) is concerned, the said decision shall not be of any assistance to the appellant. Even otherwise, on facts also, the said decision shall not be applicable to the facts of the case on hand. In the case before the Division Bench, the question was whether the learned Appellate tribunal was right in law in reversing the orders passed by the CIT(Appeals) and thereby holding that the assessee was entitled to interest under Section 244A of the Income Tax Act for both the months when the tax was paid and when the tax refundable was adjusted irrespective of the period between such events?
While answering the aforesaid question, vis-a-vis Section 244A of the Income Tax Act the Division Bench held that the definition contained in Section 3(35) of the General Clauses Act of the word "month" cannot be adopted in Section 244A of the Income Tax Act, and therefore, the said decision shall not be of any assistance to the appellant to the facts of the case on hand.
[7.6] Similarly decision of the Bombay High Court in the case of Bombay Gas Public Ltd. Vs. Laxman Dhaku and Others reported in 1997 (1) LLN 193 and the decision of the Calcutta High Court in the case of Ashoke Dasgupa (Supra) shall not be applicable and /or of any assistance to the appellant to the facts of the case on hand, more particularly, in Page 19 of 21 HC-NIC Page 19 of 21 Created On Tue Aug 15 23:08:35 IST 2017 O/TAXAP/227/2017 JUDGMENT view of the direct decision of the Allahabad High Court in the case of Ashok Kumar Tiwari (Supra) and also the decision of the Hon'ble Supreme Court in the case of M/s. Himachal Techno Engineers and Anr (Supra).
[7.7] Now so far as the submission on behalf of the appellant relying upon the decision of the Hon'ble Supreme Court in the case of Pratap Singh (Supra) that when two meanings /interpretations are possible, in that case, the view in favour of the assessee shall be adopted and /or the Courts lean strongly against any constructions which tend to reduce a statute to a futility is concerned, at the outset, it is required to be noted that as such Section 85(3A) of the Finance Act, 1994 is very clear and there is no possibility of any two views and /or interpretations. As rightly observed by the Allahabad High Court in the case of Ashok Kumar Tiwari (Supra) once the Legislature has used the expression "three months" both in substantive part of sub-Section (3) of Section 85 ibid as well as in its proviso, it would not be open for the Court to substitute the words "three months" by words "ninety days" and to do so would amount to rewriting the legislative provision, which is not permissible.
[8.0] In view of the above and for the reasons stated hereinabove, we see no reason to interfere with the impugned judgment and order passed by the learned tribunal confirming the order passed by the learned Commissioner (Appeals) rejecting the Appeal on the ground of limitation and on the ground that as the Appeal was preferred beyond the period of "three months", considering Section 85(3A) of the Finance Act, 1994 he has no jurisdiction to condone the delay beyond the Page 20 of 21 HC-NIC Page 20 of 21 Created On Tue Aug 15 23:08:35 IST 2017 O/TAXAP/227/2017 JUDGMENT condonable period of one month.
[9.0] Under the circumstances, the present Tax Appeal fails and the same deserves to be dismissed as is accordingly dismissed and the questions of law is held against the assessee and in favour of the revenue.
(M.R. SHAH, J.) (B.N. KARIA, J.) Siji Page 21 of 21 HC-NIC Page 21 of 21 Created On Tue Aug 15 23:08:35 IST 2017