Section 29(2) of the Limitation Act, 1963, makes sections 4 to 24 (inclusive) of the Act applicable to proceedings under the Orissa Sales Tax Act, 1947, unless expressly excluded. Section 5 of the Limitation Act, which deals with condonation of delay, is one of the sections made applicable by section 29(2). The provisions of section 5 of the Limitation Act are not limited to courts but also apply to tribunals, such as the Assistant Commissioner of Sales Tax, when they are exercising judicial functions.

JUDGMENT

R. N. MISRA, J. - On assessee's application made under section 24(2)(b) of the Orissa Sales Tax Act, 1947 (hereinafter to be referred to as "the Act") this court directed the Tribunal to state a case and refer the following question for opinion of this court :

"Whether, in the facts and circumstances of the case, the assessee was entitled to obtain extension of time for filing of the appeal before the first appellate authority upon satisfying him that there was good cause for not presenting the appeal within the prescribed period ?"

2. On 9th March, 1970, assessee received the order of assessment for the period 1968-69. On 16th May, 1970, an appeal was filed before the Assistant Commissioner of Sales Tax. Under the provisions of section 23(1) of the Act such an appeal has to be filed within 30 days from the date of receipt of the order of assessment. As the appeal was out of time, the assessee made an application for condonation of delay and claimed that he was ill. A medical certificate in support of the illness was also filed. The first appellate authority dismissed the appeal by saying that he had no jurisdiction to condone the delay. The Tribunal in second appeal placed reliance on the decision of the Supreme Court in the case of Commissioner of Income-tax v. National Finance ([1962] 44 I.T.R. 788 (S.C.)), and upheld the order of the Assistant Commissioner.

3. Section 23(1) provides :

"Within thirty days from the date of receipt of the copy of -

(a) an order of assessment with or without penalty under section 12, 12-A or 12-B; or .......

any dealer or person, as the case may be, may, in the prescribed manner appeal to the prescribed authority against such order."

In the original Act of 1947 power had not been conferred on the first appellate authority to admit appeals filed beyond thirty days. Under Orissa Act 27 of 1951 the following proviso was inserted to sub-section (1) of section 23 of the Act :

"Provided further that the prescribed authority may admit the appeal after the period hereinbefore specified if the said authority is satisfied that the dealer has sufficient cause for not preferring the appeal within the said period."

Section 23 underwent substantial amendments by Orissa Act 1 of 1955 and Orissa Act 20 of 1957. The proviso referred to above was not disturbed. Under Orissa Act 1 of 1955, similar power was vested in the Tribunal. Under Orissa Act 20 of 1957, section 23 was redrafted and the power to admit appeals beyond time so far as the Tribunal was concerned was not provided, but it was reintroduced by Orissa Act 31 of 1962. Under Orissa Act 15 of 1968, sub-section (1) of section 23 was substituted. The proviso was dropped out from the said sub-section. The net result, therefore, is that the first appellate authority under the Act has no power to condone delay in preferring appeals, while the power has been vested in regard to second appeals in the Tribunal.

4. The assessee contends that the decision of the Supreme Court relied upon by the Tribunal could not have been applied to the facts of the case, because the decision was rendered with reference to the Limitation Act of 1908 and did not take note of the changed provisions under the Limitation Act of 1963. We may refer to the two provisions under the Act of 1908 and the Act of 1963. Section 29(2) of the Limitation Act of 1908 provided :

"Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law -

(a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and

(b) the re