Madras High Court
Quantas Engineers And Promoters (P) ... vs Tamil Nadu Taxation Special Tribunal ... on 17 October, 2001
Equivalent citations: 2003(162)ELT1165(MAD), [2003]131STC529(MAD)
Author: R. Jayasimha Babu
Bench: R. Jayasimha Babu, A.K. Rajan
ORDER R. Jayasimha Babu, J.
1. Counsel contends that despite the specific provision in the statute, which limits the period within which an appeal can be preferred and the further period allowed under the statute, the delay which has extended beyond that permissible period should be condoned, and that the Tribunal was in error in not condoning it.
2. Counsel relied upon a decision of the Bench of this Court in the case of Maheswari Fireworks Industries v. Commercial Tax Officer [2001] 121 STC 272, wherein this Court observed that the limitation prescribed in the statute cannot be made applicable to this Court while exercising jurisdiction under Article 226 of the Constitution of India.
3. The law of limitation is meant to be uniformly applied to all, and is not a thing to be circumvented by invoking the jurisdiction of this Court by way of challenge to an order of the Tribunal which has merely directed the litigant to look to the statutory provision to ascertain the extent of his right. It is a different matter, if the court, on examination of the merits of a matter properly brought before it, but without availing the appellate remedy, finds that the alternate remedy which should have been pursued by the litigant, but for bona fide reasons, had not been pursued, were to permit such a litigant to have the benefit of an appeal, and in order to enable him to do so, direct the authority to entertain the appeal and dispose of the same on merits.
4. The discretion of the court under Article 226 of the Constitution is to be exercised with caution, especially, in cases where the limitation provided in the statute is sought to be overridden even without examining the merits of the matter. The reason given by the assessee here for justifying the non-filing of the appeal in time is that the person in-charge of the company was ill. That by itself cannot be a reason to hold that the law of limitation prescribed in the statute should not apply in the case of the assessee. A running business has many persons employed in it and those who are required to conform to the requirements of the Act as dealers must take necessary precaution to conform to its requirements. The fact that the extent of the delay is short is also by itself not a good reason, as once the period of limitation prescribed by law is over, the bar which the statute itself imposes on the authority to entertain the appeal is not to be lifted merely because the period of delay is a short one. Any such approach would result in practically rewriting the statutory provision and adding a proviso providing for a further grace period beyond what the statute has prescribed.
5. In the decision earlier referred to, the court stated that it was condoning the delay on the special facts and circumstances of that case.
6. Counsel also relied upon a judgment of a learned single Judge of the Allahabad High Court in the case of Commissioner, Trade Tax v. Battra P.P. Caps Industry [1999] 114 STC 143, wherein the court held that substantial justice is to be preferred to technicalities. That is undoubtedly so, and that is what the courts are for. That, however, does not mean that the legislation which has prescribed time-limit within which appellate remedies have to be pursued, is to be rewritten, or ignored. It must be kept in view that the provision regarding limitation is applicable not only to the petitioner before the court, but to every dealer each of whom has to look to the provision of the statute, to. ascertain the extent of his rights. We are unable to concur with the observation of the learned single Judge in that case, that there will be any legalisations of injustice by not entertaining a plea for condoning the delay. Justice is not served merely by stretching the period within which remedies are to be pursued, or by ignoring the limits imposed by the statute.
7. The Supreme Court in the case of Union of India v. Popular Construction Co. , has held that the Legislature can, even by implication exclude the provisions of the Limitation Act in relation to the matters dealt with in the special law. The court held that Section 5 of the Limitation Act, 1963 cannot be invoked to condone the delay in filing applications under Section 34 of the Arbitration and Conciliation Act, 1996 and to set aside an award made under the provisions of that Act. The court observed in that decision :
"Thus, where the Legislature prescribed a special limitation for the purpose of the appeal and the period of limitation of sixty days was to be computed after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the specific inclusion of these sections meant that to that extent only the provisions of the Limitation Act stood extended and the applicability of the other provisions, by necessary implication stood excluded."
8. Rejection of an application to condone the delay in filing the application beyond the period provided for in the Arbitration and Conciliation Act results in the award becoming final with the consequence of the award become executable. If such drastic consequence is to follow on the ground that there is no provision under which the delay could be condoned in that Act, it is difficult to see why delay in filing the appeal under the State Sales Tax Act should be regarded as condonable even when Section 5 of the Limitation Act is not applicable to that proceedings. Article 226 of the Constitution cannot be used as a magic wand to get over the bar of limitation.
9. We do not see any error of law or jurisdiction in the order of the Tribunal. The writ petition is dismissed.