2008 Supreme(Raj) 2529
RAJASTHAN HIGH COURT
Dinesh Maheshwari, J.
Assistant Commissioner, Commercial Taxes Special Circle, Udaipur - Appellant
Versus
Sanskrit Comfort Pvt. Ltd. - Respondent
S.B. Sales Tax Revision Petition No. 2499 of 2003.
Decided On : 29-09-2008
Advocates:
For the Petitioner:Mr. Rishabh Sancheti for Mr. Vineet Kumar Mathur, Advocate.
For the Non-Petitioner:Mr. Rajesh Jain with Ms. Ajanta Saraswat, Advocate.
For the Intervener:Mr. Anjay Kothari, Advocate.
Headnote:
(a) Raj. Sales Tax Act, 1994 – S. 86 – Limitation Act, 1963 – S. 5 – The applicability of – S. 5 of Limitation Act was emphasized. It was observed that the expression `shall` used in – S. 86(2) of the Sales Tax Act, 1994 has its role and operation only to make it obligatory for the officer concerned, to apply for revision. There is nothing to indicate that the applicability of – S. 5 of Limitation Act of 1963 has been excluded for the purpose of – S. 86 of the Sales Tax Act of 1994.
(b) Raj. Sales Tax Act, 1994 – The respondent’s income as a businessman was in the issue for the purpose of assessment of tax in the relevant year 1994 – 1995 in which the tax was payable at the rate of 10%. Later the room coolers were included in the category of electronic good for the purpose of assessment of tax at the rate of 12%. It was held that in the relevant year the cooler fell in the category of residuary items taxable at 10% and again in the budget speech of the chief minister, cooler was mentioned as the item referred to be taxed at 10%. The revision petition was dismissed.
JUDGMENT
1. 1. This revision petition under Section 86(2) of the Rajasthan Sales Tax Act, 1994 ('the Act of 1994') filed by the revenue on 29.03.2003 against the order dated 01.08.2002 as passed by the Rajasthan Tax Board, Ajmer in Appeal No. 1177/1999 is reported to be barred by limitation by 2 days and the petitioner has moved an application under Section 5 of the Limitation Act, 1963 ('the Limitation Act') for condonation of delay that has been opposed on behalf of the non-petitioner as being incompetent.
2. Though, this Court is satisfied that on merit this revision petition remains bereft of substance; and further the fate of this revision petition remains sealed with the order impugned herein having already been found not calling for interference by this Court while rejecting the cognate revision petition (S.B. Sales Tax Revision Petition Nos. 584/2005) on 02.02.2006 and, admittedly, the order passed by this Court on 02.02.2006 in rejecting the said revision petition has attained finality, but and however, for the learned counsel for the petitioner having pressed on the revision petition and submissions having been made on the question of applicability of Section 5 Limitation Act for condonation of delay in filing the revision petition to this Court under Section 86 of the Act of 1994 and such issue being of recurrence, it appears appropriate to deal with the submissions as made at the Bar.
3. Learned counsel Mr. Rajesh Jain appearing for the non-petitioner with the learned counsel Ms. Ajanta Saraswat, while opposing the application for condonation of delay has argued with emphasis that he Act of 1994 is a complete Code in itself and the scheme of this enactment makes it clear that it has independent provisions relating to all aspects like filing of returns, assessment, search, seizure, imposition of penalty, appeal, revision, period of limitation etc., and separate periods of limitation have been provided under different provisions like Section 26(1), 26(5) and so also for filing of first appeal under Section 84 and filing of next appeal before Tax Board under Section 85; and these provisions specify a period of limitation and the further period to which the delay could be condoned. However, and learned counsel underscored the submission, Section 86 providing for revision to this Court does not contain any provision for condonation of delay while providing different periods of limitation, one for the revision petition by a dealer under Section 86(1) at 90 days, and another for a revision petition by the revenue under Section 86(2) of the Act at 180 days. Learned counsel would submit that per the phraseology of Section 86(2) where it is enjoined that the revision through the Officer or in-charge of check post shall be filed within 180 days, the expression 'shall' carries all the mandatory requirements that cannot be altered and hence applicability of Section 5 of the Limitation Act is ruled out. Learned counsel referred to the decisions in (1) Miles India Ltd. v. Asstt. Commissioner, Customs : 1987 (30) ELT 641 (SC) , (2) CCE v. Doaba Coop. Sugar Mills : 1988 (37) ELT 478 (SC) , (3) CST, U.P. v. General Manager, Northern Railway : 1978 (42) STC 407 (All.) , (4) Gopal Sardar v. Karuna Sardar : (2004) 4 SCC 252 , (5) Fairgrowth Investment Ltd. v. Custodian : (2004) 11 SCC 472 , (6) CCE, Meerut-II v. Salora International : 2006 (206) ELT 61 (All.) , (7) Hukumdev Narian Yadav v. Lalit Narain Mishra : (1974) 2 SCC 133 , (8) CST, Lucknow v. Parson Tools & Plants, Kanpur, 1975 (35) STC 413 (SC) , (9) Delta Impex v. CC (ACU), New Delhi 2004 (173) ELT 449 (Del.) , (10) Pranam Enterprises v. CST, New Delhi 2005 (192) ELT 138 (Del.) , (11) Jhabboo Lal Kesara Rolling Mills v. UOI & Ors. 1985 (19) ELT 367 (All) , (12) Commissioner of Sales Tax, Maharashtra v. N.H. Polymers : (2008) 13 VST 73 (Bom) , and (13) Commissioner of Customs, Central Excise, Noida v. Punjab Fibres Ltd. Noida : 2008 (3) SCC 73 . Learned counsel submi
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