Superintending Engineer/Dehar Power House Circle Bhakra Beas Management Board (PW) Slapper vs Excise and Taxation Officer, Sunder Nagar/Assessing Authority

Headnote

(A) Limitation Act, 1963 – Sections 5 and 29(2) – Himachal Pradesh Value Added Tax Act, 2005 – Section 48 read with Section 64(5) – Revision – Condonation of delay – Section 48(1) nowhere expressly excludes applicability of provisions of Limitation Act – Provisions of Section 5 are applicable to Section 48 as they are not expressly excluded by provisions under the Act of 2005 – In view of provisions in Section 45(4), which makes provisions to condone delay like Limitation Act, conferring power upon an authority also to condone delay – Suo motu revision has also been provided under Section 46 – In Section 48, there is no express exclusion – Because of scheme of Act, it cannot be inferred that by implication, provisions of Section 5 of Limitation Act are excluded – Provisions contained in Section 29(2) of Limitation Act would be attracted as there is no express exclusion or by implication, in view of provisions of Act of 2005 – By virtue of provisions contained in Section 29(2), provisions of Section 5 of Limitation Act would apply to proceedings under Section 48 of Act of 2005. (Para 21)

(B) Himachal Pradesh Value Added Tax Act, 2005 – Section 48 read with Section 64(5) – Limitation Act, 1963 – Sections 5 and 29(2) – Revision – Condonation of delay – Provisions of Section 5 of Limitation Act are applicable to revisional provision under Section 48 of Act of 2005 – Revision under Act of 2005 lies to High Court, provisions of Section 5 of Limitation Act are applicable – There is no express exclusion of provisions of Section 5 and as per Section 29(2), unless a special law expressly excludes the provision, Sections 4 to 24 of Limitation Act are applicable – Scheme of Himachal Pradesh VAT Act, 2005 is not ousting provisions of 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 said provision authority would not have power to condone delay – By implication also, provisions of Section 5 of Limitation Act have not been ousted – They have play for condoning limitation under Section 48 of Act of 2005 – Suo motu provision of revisional power is also provided to Commissioner within 5 years – Intendment is not to exclude Limitation Act – Delay in filing of revision condoned. (Paras 22 and 23)

Facts of the case:

Question involved is whether the High Court while exercising revisional power under Section 48 of Himachal Pradesh Value Added Tax Act, 2005, condone delay in case a revision under Section 48 of the Act of 2005, is filed beyond 90 days from the date of communication of order or it excludes applicability of Section 29 of Limitation Act, 1963, and in consequence of Section 5 of Limitation Act.

Findings of Court:

As revision under the Act of 2005 lies to High Court, provisions of Section 5 of 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 Limitation Act are applicable.

Result : Reference answered.

Table of Contents

1. Revision under Section 48 of the Himachal Pradesh Value Added Tax Act, 2005 — Delay in filing beyond ninety days — Refusal of condonation by High Court. (Para 1 , 2 )

2. Applicability of Section 5 of the Limitation Act, 1963 — Whether the special law expressly or impliedly excludes the power to condone delay in filing revisions. (Para 2 , 4 , 7 )

3. Analysis of Section 29(2) of the Limitation Act — Evaluation of legislative intent through the statutory scheme — Comparison with other VAT and Excise laws. (Para 5 , 6 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 )

4. Section 5 of the Limitation Act applies to special laws unless expressly excluded or the statutory scheme implies exclusion through specific limiting provisions or a complete code. (Para 21 , 22 )

5. Impugned orders set aside — Delay condoned — Matters remitted to the High Court for adjudication on merits. (Para 22 , 23 )

6. When does Section 5 of the Limitation Act apply to a special or local law?

Under Section 29(2), Section 5 applies if the special or local law prescribes a limitation period different from the Schedule and does not expressly exclude the provisions of Sections 4 to 24 of the Limitation Act. (Para 5 , 11 )

7. Does the use of peremptory or mandatory language in a special law exclude the application of Section 5?

No, the mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5 of the Limitation Act. (Para 12 )

8. How can the statutory scheme of a special law imply the exclusion of Section 5?

Exclusion is implied if the Act is a complete code, provides specific limited condonation windows using phrases like but not thereafter, or explicitly limits the application of the Limitation Act to only specific sections. (Para 13 , 15 , 17 , 19 )

9. Does the power of a court to take suo motu cognizance affect the applicability of Section 5?

Yes, if a court is conferred with suo motu power to call for records at any time, it indicates there is no legislative intent to exclude the applicability of Section 5 of the Limitation Act. (Para 16 )