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2010 Supreme(P&H) 825
PUNJAB & HARYANA HIGH COURT
Adarsh Kumar Goel and Alok Singh JJ.
Lord Krishna Flour Mills Pvt.Ltd.
Versus
State Of Haryana
Civil Writ Petition No. 18613 of 2009
Decided On : FEBRUARY 8, 2010
The central legal point established in the judgment is the application of Section 14 of the Limitation Act to condone the delay in filing the reference application.
Headnote:
Limitation - Sales Tax - Haryana General Sales Tax Act, 1973, Section 42(1) - Limitation Act, Section 14 - The court discussed the provisions of Section 42(1) of the Haryana General Sales Tax Act, 1973 and Section 14 of the Limitation Act, emphasizing the exclusion of time consumed in prosecuting a proceeding with due diligence in a Court for the purpose of counting the limitation for invoking jurisdiction of Court or Tribunal having jurisdiction over the matter. The court held that delay in filing the reference application ought to have been condoned in accordance with the principles of Section 14 of the Limitation Act, and quashed the impugned orders.
Fact of the Case:
The petitioner company was granted an exemption certificate by the Sales Tax department but was later asked to make the payment of the full amount of tax benefit availed of by it during the period of exemption along with interest. The petitioner filed a review application and a writ petition seeking condonation of delay in filing the reference application.
Finding of the Court:
The court found that the delay in filing the reference application should have been condoned in accordance with the principles of Section 14 of the Limitation Act.
Issues: The main issue was whether the delay in filing the reference application should be condoned.
Ratio Decidendi: The court held that the delay in filing the reference application is liable to be condoned in accordance with the principles of Section 14 of the Limitation Act.
Final Decision: The writ petition was allowed and the impugned orders were quashed.
Alok Singh, J.
1 The present petition has been filed invoking jurisdiction of this Court under Article 226 of the Constitution of India seeking writ of certiorari quashing the orders (Annexures P-11 and P-12) both dated 14.9.2009 dismissing the reference application and review application filed by the petitioner on the ground of limitation.
2 The brief facts of the present case are that petitioner company was granted exemption certificate by the department of Sales Tax vide order dated 11.4.1991 showing the amount of exemption for the period from 8.10.1990 to 7.10.1999. Due to certain adverse conditions petitioner company suffered losses and ultimately petitioner company was taken over by the Haryana Financial Corporation on 9.12.2000. The Sales Tax department issued show cause notice under Rule 28-A(11)(b) of the Haryana General Sales Tax Rules. According to the DETC, the petitioner had failed to maintain its production at the average level of preceding 5 years after having availed benefit of exemption and therefore it is liable to make good the tax benefit availed by it alongwith interest. The petitioner was asked to show cause as to why necessary action be not taken under the Rules. Eventually, the learned DETC passed an order dated 14.9.2001 under Rule 28-A(11) and asked the petitioner to make the payment of full amount of tax benefit availed of by it during the period of exemption alongwith interest under the Act as if no exemption was ever available to it.
3 Feeling aggrieved from the order dated 14.9.2001, an appeal was preferred. However, 1st Appellate authority dismissed the appeal vide order dated 17.9.2002. Against the order dated 17.9.2002 of the 1st Appellate authority an appeal was preferred before the Tribunal which was eventually decided on 27.8.2004. However, copy of the order dated 27.8.2004 was supplied to the petitioner on 20.9.2004. Last date for reference was 19.11.2004, however, a review petition was filed before the Tribunal on 8.11.2004 vide Annexure P-6. After issuing notice to the respondent State, the review petition was eventually dismissed on 16.2.2006 after hearing both the sides: Review petition was challenged by the petitioner company before this Court by way of CWP No.11269 of 2006. CWP No. 11269 of 2006 came up for hearing and objection was raised by the department that remedy of reference was available under Section 42 of the Haryana General Sales Tax Act, 1973. Petitioner sought permission to withdraw the writ petition with liberty to avail the remedy of reference which was permitted to be withdrawn with liberty to avail theremedy of reference vide order dated 16.03.2009. Thereafter, referece was made before the Haryana Tax Tribunal on 29.04.2009 vide Annexure P-10 alongwith the application seeking condonation of delay. However, the same was dismissed and review application was also dismissed vide impugned orders. Hence, both the orders are being assailed by way of present writ petition.
4 We have heard learned Counsel for the parties and perused the record.
5 Learned Counsel appearing for the respondents vehemently argued that Haryana Tax Tribunal has passed order on 27.8.2004 and in any case it was communicated to the petitioner assessee on 20.9.2004, hence, reference could have been made within 60 days which would have expired on 19.11.2004. Hence, petitioner cannot take any advantage of filing review application and thereafter writ petition before this Court and is not entitled for any condonation of delay.
6 Undisputedly, application under Section 42(1) of the Haryana General Sales Tax Act for seeking reference of question of law to the High Court is a statutory remedy for which limitation prescribed is 60 days from the date of the order passed by the Tribunal in the appeal.
7 Section 14 of the Limitation Act reads as under.-
"Exclusion of time of proceeding bona fide in Court without jurisdictional. In computing the period of limitation for any suit the time during which the p
