Himachal Pradesh High Court
The State Of Himachal Pradesh And Others vs M/S Web Technologies on 18 June, 2018
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMP(M) No. 1371 of 2017 with CMP(M) No. 1334 of 2017, .
CMP(M) No. 1372 of 2017, CMP(M) No. 564 of 2018 & CMP(M) No. 320 of 2018 Reserved on: 15.06.2018 Date of Decision: 18.06.2018 CMP(M) No. 1371 of 2017 r Versus The State of Himachal Pradesh and others ....Applicants/Petitioners.
Tritronics India Private Ltd.
...non-applicant/Respondent.
CMP(M) No. 1334 of 2017 The State of Himachal Pradesh and others ....Applicants/Petitioners.
Versus M/s Web Technologies ...non-applicant/Respondent.
CMP(M) No. 1372 of 2017The State of Himachal Pradesh and others ....Applicants/Petitioners.
Versus Swelect Energy System Ltd.
...non-applicant/Respondent.
CMP(M) No. 564 of 2018M/s Paras Sales Corporation ....Applicant/Petitioner.
::: Downloaded on - 18/06/2018 23:03:41 :::HCHPVersus Excise and Taxation Officer-cum-
Assessing Authority .
...non-applicant/Respondent.
CMP(M) No. 320 of 2018State of Himachal Pradesh and others ....Applicants/Petitioners.
Versus M/s Mahesh Ugyog ...non-applicant/Respondent.
Coram The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice.
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes For the applicants/ : Mr. Ashok Sharma, Advocate petitioners General with M/s. Ranjan Sharma, Ritta Goswami and Adarsh Sharma, Additional Advocate Generals for the applicants/State for the applicants/ petitioners in CMP(M)s No. 1371, 1334, 1372 of 2017 and CMP(M) of 320 of 2018.
: Mr. Vishal Mohan, Advocate for the applicant/petitioner in CMP(M) No. 564 of 2018.
For the non-applicants/ : Mr. R.L. Sood, Sr. Advocate with Mr. Arjun K. Lal, Advocate, for the respondent/non-applicant in CMP(M)s No. 1371 and 1334 of 2017 : Mr. Goverdhan Lal Sharma, Advocate, for respondent/non-
::: Downloaded on - 18/06/2018 23:03:41 :::HCHPapplicant in CMP(M) No. 1372 of 2017.
: Mr. Rakesh Sharma, Advocate for
respondent/non-applicant in
.
CMP(M) No. 320 of 2018.
: Mr. Ashok Sharma, Advocate
General with M/s. Ranjan Sharma,
Ritta Goswami and Adarsh Sharma,
Additional Advocate Generals for the respondent.
Sanjay Karol, Acting Chief Justice:-
Moot issue involved in all these petitions is as to whether this Court can entertain a Revision Petition under Section 48(1) of the Himachal Pradesh Value Added Tax Act, 2005, which is filed beyond the period of limitation so prescribed in the Statute. In other words, what this Court has to decide is as to can it entertain an application under Section 5 of the Limitation Act for condonation of delay in filing a Revision Petition under Section 48 (1) of the Himachal Pradesh Value Added Tax Act, 2005.
2. It is not in dispute that all these Revision Petitions are time barred. In fact, by way of application No. CMP(M) No 1371 of 2017 so filed for condonation of delay in Revision Petition titled State of Himachal Pradesh and others versus Tritronics India Pvt. Ltd., delay is of more than two years and nine months. Similar is the case in other petitions also, ::: Downloaded on - 18/06/2018 23:03:41 :::HCHP wherein also prayer for condonation of delay in filing the said Revision Petitions is there.
.
3. We have heard learned Counsel for the parties.
4. Whereas the contention of learned Senior Counsel who is opposing the application so filed under Section 5 of the Limitation Act is that the said application per se is not maintainable and the same is liable to be dismissed outrightly, learned Senior Additional Advocate General has argued that the application for condonation of delay is maintainable and this Court has power to condone the delay.
He has placed reliance on the judgment of the Hon'ble Supreme Court titled as State of Madhya Pradesh and another versus Anshuman Shukla, (2014) 10 Supreme Court Cases 814. In support of his contention, Mr. Rakeshwar Lal Sood, learned Senior Counsel for the non-applicant/ respondent, besides other judgments, has relied upon the following judgments of the Hon'ble Supreme Court:-
i) Commissioner of Customs and Central Excise versus Hongo India Private Limited and another, (2009) 5 Supreme Court Cases 791;
ii) Patel Brothers Versus State of Assam and others, (2017) 2 Supreme Court Cases 350;::: Downloaded on - 18/06/2018 23:03:41 :::HCHP
5. Section 48 of the Himachal Pradesh Value Added Tax Act, 2005 (hereinafter referred to as '2005 Act') provides .
as under:-
"48. Revision to High Court. -(1) Any person aggrieved by an order made by the tribunal under sub-section (2) of section 45 or under subsection (3) of section 46, may, within 90 days of the communication of such order, apply to the High Court of Himachal Pradesh for revision of such order if it involves any question of law arising out of erroneous decision of law or failure to decide a question of law.
(2) The application for revision under sub-section (1) shall precisely state the question of law involved in the order, and it shall be competent for the High Court to formulate the question of law.
(3) Where an application under this section is pending, the High Court may, or on application, in this behalf, stay recovery of any disputed amount of tax, penalty or interest payable or refund of any amount due under the order sought to be revised:
Provided that no order for stay of recovery of such disputed amount shall remain in force for more than 30 days unless the applicant furnishes adequate security to the satisfaction of the Assessing Authority concerned.
(4) The application for revision under sub-section (1) or the application for stay under sub-section (3) shall be heard and decided by a bench consisting of not less than two judges.
::: Downloaded on - 18/06/2018 23:03:41 :::HCHP(5) No order shall be passed under this section which adversely affects any person unless such person has been given a reasonable opportunity of being heard."
.
(Emphasis supplied)
6. The language of the Statute is unambiguous and categorical that a person aggrieved by an order made by a Tribunal either under Section 45(2) or Section 46(3) of the 2005 Act may within a period of 90 days of the communication of such order, apply to the High Court for revision of such order, if it involves a question of law arising out of erroneous decision of law or failure to decide a question of law.
7. There is no provision in the Statute from which it could be inferred that a time barred Revision Petition can be preferred before the High Court and if the High Court is so satisfied, it can condone the delay in filing the same.
8. In Anshuman Shukla (supra), Hon'ble Supreme Court (three Judges Bench) was dealing with the applicability of Section 5 of the Limitation Act vis-a-vis Section 19 of the same, relevant provision of which reads as under:-
"19. High Court's power of revision -(1)- The High Court may suo motu at any time or on an application made to it within three months of the award by an aggrieved party, call for the record of any case in ::: Downloaded on - 18/06/2018 23:03:41 :::HCHP which an award has been made under this Act by issuing a requisition to the Tribunal, and upon receipt of such requisition the Tribunal shall send or cause to .
be sent to that Court the concerned award and record thereof."
9. Hon'ble Court held that Section 19 did not contain any express rider on the power of the High Court to entertain an application for revision after the expiry of period of three months. It further held that, on the contrary, the High Court was conferred with suo motu power, to call for the record of an award at any time, and therefore, it could not be the legislative intent so as to exclude the applicability of Section 5 of the Limitation Act to Section 19 of the 1983 Act.
10. Now, incidentally Section 19 (supra) inter alia conferred upon the High Court suo motu power of revision whereas in the Act with which we are dealing with, no such like suo motu power stands conferred upon the High Court.
11. In fact, the question of law which was decided by Hon'ble Supreme Court in Patel Brothers (supra) is almost para materia to the one as is before us in these Revision Petitions. In the said case, the question of law before the Hon'ble Supreme Court was as to whether provisions of Section 5 of the Limitation Act, 1963 are applicable in respect ::: Downloaded on - 18/06/2018 23:03:41 :::HCHP of Revision Petition filed in the High Court under Section 81 of the Assam Value Added Tax Act, 2003. Section 81 of the said .
Act reads as under:-
"81. Revision to High Court : (1) Any dealer or other person, who is dissatisfied with the decision of the Appellate Tribunal, or the Commissioner may, within sixty days after being notified of the decision of the Appellate Tribunal, file a revision to the High Court, and the dealer or other person so appealing shall serve a copy of the notice of revision on the respondents to the proceedings."
12. Statutory provisions of Section 81 of the Assam Value Added Tax Act (supra) are almost para materia with the provisions of Section 48 of the Himachal Pradesh Value Added Tax Act, 2005. For ready reference, we are again quoting the provisions of these two Sections herein under:-
"Section 81 of Assam Value Added Tax Act:
"81. Revision to High Court : (1) Any dealer or other person, who is dissatisfied with the decision of the Appellate Tribunal, or the Commissioner may, within sixty days after being notified of the decision of the Appellate Tribunal, file a revision to the High Court, and the dealer or other person so appealing shall serve a copy of the notice of revision on the respondents to the proceedings."::: Downloaded on - 18/06/2018 23:03:41 :::HCHP
Relevant extract of Section 48 of Act, reads as under:-
.
"48. Revision to High Court. -(1) Any person aggrieved by an order made by the tribunal under sub-section (2) of section 45 or under subsection (3) of section 46, may, within 90 days of the 85 communication of such order, apply to the High Court of Himachal Pradesh for revision of such order if it involves any question of law arising out of erroneous decision of law or failure to decide a question of law.
r (Emphasis supplied)
13. It was while interpreting a statutory provision akin to that contained in Section 48 of the Himachal Pradesh Value Added Tax Act, 2005, that Hon'ble Supreme Court held that the application of Section 5 of the Limitation Act to a proceeding under Section 81(1) of the Assam Value Added Tax Act stood excluded by necessary implication, by virtue of language employed in Section 84.
14. Incidentally, we find that in Assam Value Added Tax Act, Section 84 provided that in computing period of limitation, provisions of Sections 4 and 12 of the Limitation Act, 1963 shall so far as may be apply. While dealing with this issue, Hon'ble Supreme Court held as under:-
20.Thus, the approach which is to be adopted by the Court in such cases is to examine the provisions of ::: Downloaded on - 18/06/2018 23:03:41 :::HCHP special law to arrive at a conclusion as to whether there was legislative intent to exclude the operation of Limitation Act. In the instant case, we find .
that Section 84of the VAT Act made only Sections 4 and 12 of the Limitation Act applicable to the proceedings under the VAT Act. The apparent legislative intent, which can be clearly evinced, is to exclude other provisions, including Section 5 of the Limitation Act. Section 29(2) stipulates that in the absence of any express provision in a special law, provisions of Sections 4 to 24 of the Limitation Act would apply. If the intention of the legislature was to make Section 5, or for that matter, other provisions of the Limitation Act applicable to the proceedings under the VAT Act, there was no necessity to make specific provision like Section 84 thereby making only Sections 4 and 12 of the Limitation Act applicable to such proceedings, inasmuch as these two Sections would also have become applicable by virtue of Section 29(2) of the Limitation Act. It is, thus, clear that the Legislature intended only Sections 4 and 12 of the Limitation Act, out of Sections 4 to 24 of the said Act, applicable under the VAT Act thereby excluding the applicability of the other provisions."
15. Coming back to Himachal Pradesh Value Added Tax Act, 2005, we find that there is no provision whatsoever contained in this Act by virtue of which it con be inferred that that any provision of Limitation Act was to apply to a proceeding under this Act.
::: Downloaded on - 18/06/2018 23:03:41 :::HCHP16. Further, in Patel Brothers (supra), Hon'ble Supreme Court (two Judges Bench), while dealing with the .
issue as to whether provisions of Section 5 of the Limitation Act were applicable in respect to Revision Petition filed in the High Court under Section 81 of the Assam Value Added Tax Act, 2003, has held as under:-
"21.......On the contrary, in the instant case, a scrutiny of the scheme of VAT Act goes to show that it is a complete code not only laying down the forum but also prescribing the time limit within which each forum would be competent to entertain the appeal or revision. The underlying object of the Act appears to be not only to shorten the length of the proceedings initiated under the different provisions contained therein, but also to ensure finality of the decision made there under. The fact that the period of limitation described therein has been equally made applicable to the assessee as well as the revenue lends ample credence to such a conclusion. We, therefore, unhesitantly hold that the application of Section 5 of the Limitation Act, 1963 to a proceeding under Section 81(1) of the VAT Act stands excluded by necessary implication, by virtue of the language employed in section 84.
The High Court has rightly pointed out the well settled principle of law that: (Patel Bros. Case, SCC OnLine Gau para 19) "19....the court cannot interpret the statute the way they have developed the common law ::: Downloaded on - 18/06/2018 23:03:41 :::HCHP 'which in a constitutional sense means judicially developed equity'. In abrogating or modifying a rule of the common law the court .
exercises the same power of creation that built up the common law through its existence by the judges of the past. The court can exercise no such power in respect of statue, therefore, in the task of interpreting and applying a statue, Judges have to be conscious that in the end the statue is the master not the servant of the judgment and no judge has a choice between implementing it and disobeying it."
What, therefore, follows is that the court cannot interpret the law in such a manner so as to read into the Act an inherent power of condoning the delay by invoking Section 5 of the Limitation Act, 1963 so as to supplement the provisions of the VAT Act which excludes the operation of Section 5 by necessary implications."
17. In Hongo India Private Limited, Hon'ble Supreme Court (three Judge Bench) was determining the following question:-
"Whether the High Court in the reference application under Section 35-H(I) of the Unamended Act, has power under Section 5 of the Limitation Act, 1963 to condone the delay beyond the period of prescribed under the main statute i.e. the Central Excise Act."
While answering the same, the Court that:-
::: Downloaded on - 18/06/2018 23:03:41 :::HCHP"32. As pointed out earlier, the language used in Sections 35, 35-B, 35-EE, 35-G and 35-H makes the position clear that an appeal and reference to the .
High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days.
33. Even otherwise, for filing an appeal to the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision.
34. Though, an argument was raised based on Section 29 of the Limitation Act, even assuming ::: Downloaded on - 18/06/2018 23:03:41 :::HCHP that Section 29(2) would be attracted what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to .
High Court.
35. It was contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law here in this case is Central Excise Act. The nature of the remedy provided therein are such that the legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.::: Downloaded on - 18/06/2018 23:03:41 :::HCHP
36. The scheme of the Central Excise Act, 1944 support the conclusion that the time-limit prescribed under Section 35-H(1) to make a reference to High .
Court is absolute and unextendable by court under Section 5 of the Limitation Act. It is well settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Act.
37. In the light of the above discussion, we hold that the High Court has no power to condone the delay in filing the "reference application" filed by the Commissioner under unamended Section 35-H(1) of the Central Excise Act, 1944 beyond the prescribed period of 180 days and rightly dismissed the reference on the ground of limitation.
38. In view of the above conclusion, we confirm the decision of the High Court. Hence, all the appeals are accordingly dismissed. No costs."
(Emphasis supplied)
18. Section 35-H of the Central Excise Act, 1944, which was being interpreted by the Hon'ble Supreme Court in Commissioner of Customs and Central Excise versus Hongo India Private Limited and another (supra), reads as under:-
"35H. Application to High Court - (1) The Commissioner of Central Excise or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under section 35C passed before the 1st day of July, ::: Downloaded on - 18/06/2018 23:03:41 :::HCHP 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods .
for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal."
(Emphasis supplied)
19. While deciding the said case, it was observed by the Hon'ble Supreme Court that except providing a period of 180 days for filing reference application to the High Court, there was no other Clause for condoning the delay if Reference is made beyond the said prescribed period.
20. We also find that in Patel Bothers (supra) wherein while dealing with a Statutory provision which pertained to Value Added Tax Act, as is the case before us also, Hon'ble Supreme Court has referred to Anshuman Shukla's case and yet held that there was no inherent power conferred upon the High Court under the provisions of Assam Value Added Tax Act to condone delay in filing of Revision Petition before it. We also notice that both in Patel Brothers (supra) as also in Hongo India Private Limited (supra), Honble Supreme Court was interpreting applicability of Limitation Act, vis-a-vis ::: Downloaded on - 18/06/2018 23:03:41 :::HCHP Excise/Tax legislation. In fact, in Hongo India Private Limited (supra), Hon'ble Supreme Court has elaborately dealt with .
scope of Section 29(2) of the Limitation Act vis-a-vis Section of the same.
21. According to us, law so declared by Hon'ble Supreme Court is both applicable and binding as far as its applicability on Section 48 of the Himachal Pradesh Value Added Tax Act, 2005 is concerned because in the absence of any provision in the Statute wherein there is no clause prescribed for condonation of delay, if the Revision Petition is not filed within the period of limitation. We have no hesitation in holding that application of Section 5 of the Limitation Act to a proceeding under Section 48 of the Himachal Pradesh Value Added Tax Act, 2005 stands excluded by necessary implication, by virtue of the language employed in Section 48 (supra).
22. We are also bound by the law laid down by Hon'ble Supreme Court that Court cannot interpret the law in such a manner so as to read into the Act an inherent power of condoning the delay by invoking Section 5 of the Limitation Act, 1963, so as to supplement the provisions of the Himachal ::: Downloaded on - 18/06/2018 23:03:41 :::HCHP Pradesh Value Added Tax Act, 2005, which excludes the operation of Section 5 by necessary implication.
.
23. At this stage, it is relevant to refer to the law laid down Hon'ble Supreme Court in Hukumdev Narain Yadav v.
Lalit Narain Mishra (1974) 2 Supreme Court Cases 133, wherein it has been held that where a Statute is a complete code in itself, meaning thereby that it is a substantive as well as procedural code, then the application of Limitation Act has to be seen from the scope of application of the Statute and not the Limitation Act. It was held in the said judgment as under:-
"17. Though Section 29(2) of the Limitation Act has been made applicable to appeals both under the Act as well as under the Code of Criminal Procedure, no case has been brought to our notice where s.
29(2) has been made applicable to an election petition filed under s. 81 of the Act by virtue of which either ss. 4, 5 or 12 of the Limitation Act has been attracted. Even assuming that where a period of limitation has not been fixed for election petitions in the Schedule to the Limitation Act which is different from that fixed under s. 81 of the Act, s. 29 (2) would be attracted, and what we have to determine is whether the provisions of this section are expressly excluded in the case of an election petition. It is contended before us that the words "expressly excluded" would mean that there must be an express ::: Downloaded on - 18/06/2018 23:03:41 :::HCHP reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. As usual the meaning .
given in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the Legislature, intended it to be a complete code by itself which alone should govern the several matters provided by it. If on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of ss. 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of those provisions or the nature of the subject-
matter and scheme of the special law exclude their operation. The provisions of s. 3 of the Limitation Act that a suit instituted, appeal preferred and application made after the prescribed period shall be dismissed are provided for in s. 86 of the Act which gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of ss. 81, 82 or 117. It will be seen that s. 81 is not the only section mentioned in s. 86, and if the Limitation Act where to apply to an election petition under s. 81 it should equally apply to ss. 82 and 117 because under s. 86 the High Court cannot say that by an application ofs. 5 of the Limitation Act, s. 81 is complied with while no such ::: Downloaded on - 18/06/2018 23:03:41 :::HCHP benefit is available in dismissing an application for non-compliance with the provisions of ss. 82 and 117 of the Act, or alternatively if the .
provisions of the Limitation Act do not apply to s.
82 and s. 117 of the Act, it cannot be said that they apply to s. 81. Again, s. 6 of the Limitation Act which provides for the extension of the period of limitation till after the disability in the case of a person who is either a minor or insane or an idiot is inapplicable to, an election petition. Similarly, ss. 7 to 24 are in terms inapplicable to the proceedings under the Act, particularly in respect of the filing of election petitions and their trial."
24. Mr. Rakeshwar Lal Sood, learned Senior Counsel has also relied upon the following Judgments:
i) Girnar Traders (3) v. State of Maharashtra, (2011) 3 SCC 1;
ii) Gopal Sardar vs. Karuna Sardar, (2004) 4, SCC 252;
iii) Innovative Industries Ltd vs. ICICI Bank, 2018(1) SCC 407;
25. Well, we do not dwell any further on the above mentioned judgments so relied upon by learned Senior Counsel because they reiterate the principles of law laid down by the Hon'ble Supreme Court with which we have already dealt above.
26. In view of discussion held above, taking into consideration the fact that Himachal Pradesh Value Added ::: Downloaded on - 18/06/2018 23:03:41 :::HCHP Tax Act, 2005, is a complete code in itself, which, in other words, is both a substantive as well as a procedural law and .
as there is no provision contained in the Act, making the provisions of Limitation Act applicable to the proceedings which are to originate from the Act, we hold that this Court has no inherent power to condone the delay in entertaining a Revision Petition which stands filed beyond the period of limitation prescribed in the Act.
27. In view of above, the applications for condonation of delay in filing the Revision Petitions are not maintainable, as we reiterate that, in our considered view, there is no inherent power contained in this Court to either entertain such an application or condone the delay in filing the Revision Petitions. The applications are accordingly dismissed.
(Sanjay Karol) Acting Chief Justice (Ajay Mohan Goel) Judge June 18, 2018.
(narender) ::: Downloaded on - 18/06/2018 23:03:41 :::HCHP