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SUPREME COURT OF INDIA
ARUN MISHRA, M.R. SHAH, B.R. GAVAI, JJ.
Superintending Engineer/Dehar Power House Circle Bhakra Beas Management Board (PW) Slapper & Another - Appellants
Versus
Excise and Taxation Officer, Sunder Nagar/Assessing Authority - Respondents
Civil Appeal No. 8278-8281 of 2019, Civil Appeal NoS. 8276-8277 of 2019 (Arising out of S.L.P. (C) Nos.15280-15281, 15283-15285, 15288 of 2019),
Decided On : 25-10-2019
(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.
JUDGMENT :
ARUN MISHRA, J.
1. The question involved is whether the High Court while exercising revisional power under Section 48 of the Himachal Pradesh Value Added Tax Act, 2005 (‘the Act of 2005’), condone the delay in case a revision under Section 48 of the Act of 2005, is filed beyond 90 days from the date of communication of the order or it excludes the applicability of Section 29 of the Limitation Act, 1963, and in consequence of Section 5 of the Limitation Act.
2. The High Court vide impugned judgment and order dated 19.11.2018, has refused to condone the delay in the revision filed under Section 48 read with Section 64(5) of the Act of 2005, against the order passed by Himachal Pradesh Tax Tribunal. The Division Bench of the High Court relying upon the decision of a Coordinate Bench in CMP(M) No.1371 of 2017 titled State of Himachal Pradesh & others v. Tritronics India Private Limited, has held that provision of Section 5 of the Limitation Act, cannot be applied and the High Court cannot condone the delay. The revision has to be filed within 90 days, as provided in Section 48 of the Act of 2005.
3. The provisions contained in Section 48 of the Act of 2005, relating to the revisional power of the High Court, read 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 sub-section (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.
(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.”
4. The Division Bench of the High Court of Himachal Pradesh held that considering the expression used in the provisions contained in Section 48(1), the High Court could not condone the delay in filing revision. The language contained therein excludes the applicability of Section 5 of the Limitation Act. The Court cannot also exercise the inherent powers to condone the delay. The High Court has taken into consideration the provisions contained in Assam Value Added Tax, 2003. The provisions contained in Section 81 of the Assam Value Added Tax, 2003, is held to be pari materia with the provisions of Section 48 of the Act of 2005. The High Court has also referred to Section 84 of the Assam Value Added Tax, 2003, which provides that provisions of Sections 4 and 12 of the Limitation Act, shall apply in computing the period of limitation in relation to the provisions contained in the chapter. It was further observed that in the Act of 2005, there is no provision to infer that any provisions of the Limitation Act apply. The decision in Patel Brothers v. State of Assam & Ors., (2017) 2 SCC 350, has been relied on, in which while considering the provisions contained in Section 81 of the Assam Value Added Tax, 2003, it was held that provisions contained in Section 5 of the Limitation Act, stand excluded by necessary implication by the
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