SUPERINTENDING ENGINEER/ DEHAR POWER HOUSE CIRCLE BHAKRA BEAS MANAGEMENT BOARD (PW) SLAPPER & ANOTHER versus EXCISE AND TAXATION OFFICER, SUNDER NAGAR/ ASSESSING AUTHORITY on 25 October 2019

SUPREME COURT REPORTS

[2019] 13 S.C.R.

ASUPERINTENDING ENGINEER/ DEHAR POWER HOUSECIRCLE BHAKRA BEAS MANAGEMENT BOARD (PW)SLAPPER & ANOTHER

v.

EXCISE AND TAXATION OFFICER, SUNDER NAGAR/BASSESSING AUTHORITY

(Civil Appeal No. 8276–8277 of 2019)

OCTOBER 25, 2019

[ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.]CHimachal Pradesh Value Added Tax Act, 2005: s. 48 – Exercise ofrevisional power u/s. 48 by the High Court – Condonation of delayin case a revision is filed beyond 90 days from the date ofcommunication of the order – Applicability of ss. 5, 29 of theLimitation Act – Division Bench held that provision of s. 5 of theDLimitation Act cannot be applied and the High Court cannot condonethe delay – Sustainability of – Held: Held: Not sustainable – As therevision under the Act of 2005 lies to the High Court, the provisionsof s. 5 of the Limitation Act are applicable, and there is no expressexclusion of the provisions of s. 5 and as per s. 29(2), unless aspecial law expressly excludes the provision, ss. 4 to 24 of theELimitation Act are applicable – Thus, provisions of s. 5 are applicableto revisional provision u/s. 48 as they are not expressly excluded bythe provisions under the Act of 2005 - Delay in filing of revisioncondoned – Limitation Act, 1963 – ss. 5, 29.

Remitting the matter to the High Court, the CourtF

HELD: 1.1 The provisions contained in Section 29 of theLimitation Act deals with savings. The provisions in respect tothe limitation prescribed for any suit, appeal or application byany special or local law, is different from the period prescribed bythe Schedule, the provisions of Section 3 shall apply if the ScheduleGprescribed such period. The provisions contained in Sections 4to 24 shall apply only in so far as and to the extent to which theyare not expressly excluded. Section 5 of the Limitation Act dealswith the extension of the prescribed period in particularexigencies. The provision applies to the Court and is excluded H

in the application to the provisions of Order XXI of the Code ofCivil Procedure, 1908 (5 of 1908). It provides that if the Court issatisfied that the appellant/applicant had sufficient cause for notpreferring the appeal or making the application within limitation,the Court may admit the same after the prescribed period.Explanation attached to Section 5 makes it clear that in case theappellant or the applicant was misled by any order, practice, orjudgment of the High Court in ascertaining or computing theprescribed period, may be sufficient cause within the meaning ofSection 5. [Para 5, 6] [540-E; 541-A-B]

1.2 The provisions contained in section 45 of the HimachalPradesh Value Added Tax Act, 2005 provides for an appeal fromevery original order passed under the Act or the Rules madethereunder. Sub–section (4) of section 45 provides appeal to befiled within 60 days, or such more extended period as the appellateauthority may allow, for reasons to be recorded in writing. Thus,because of the provisions contained in section 45(4), the principlesof section 5 would apply to an appeal before the appellate authority,which otherwise in the absence of specific provision would nothave applied to authority. The revision is provided to theCommissioner suo motu under the provisions of section 46(1),and the period provided is 5 years for suo motu exercise ofrevisional power. However, the tribunal has the power to entertainapplication within 60 days from the date of communication of theorder. When the provisions of section 48 are considered, revisionis provided to the High Court, and an aggrieved person may within90 days of the communication of such order, file a revision. Section48(1) nowhere expressly excludes the applicability of provisionsof the Limitation Act. The provisions of section 5 are applicableto Section 48 as they are not expressly excluded by the provisionsunder the Act of 2005. More so, in view of the provisions insection 45(4), which makes provisions to condone the delay likethe Limitation Act, conferring power upon an authority also tocondone delay. Further, suo motu revision has also been providedunder section 46. In section 48, there is no express exclusion.Because of the scheme of the Act, it cannot be inferred that byimplication, the provisions of section 5 of the Limitation Act are

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Aexcluded. Provisions contained in section 29(2) would be attractedas there is no express exclusion or by implication, in view of theprovisions of the Act of 2005. By virtue of the provisions containedin section 29(2), provisions of section 5 of the Limitation Actwould apply to proceedings under Section 48 of the Act of 2005.[Para 21] [562-F-H; 563-A-C]

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1.3 As the revision under the Act of 2005 lies to the HighCourt, the provisions of section 5 of the Limitation Act areapplicable, and there is no express exclusion of the provisions ofsection 5 and as per section 29(2), unless a special law expresslyexcludes the provision, sections 4 to 24 of the Limitation Act areCapplicable. On consideraton of the scheme of the HimachalPradesh VAT Act, 2005, it is apparent that its scheme is notousting the provisions of the Limitation Act from its ken whichmakes principles of section 5 applicable even to an authority inthe matter of filing an appeal but for the said provision the authorityDwould not have the power to condone the delay. By implicationalso, it is apparent that the provisions of Section 5 of the LimitationAct have not been ousted; they have the play for condoning thelimitation under Section 48 of the Act of 2005. Suo motu provisionof revisional power is also provided to the Commissioner within5 years. Thus, the intendment is not to exclude the LimitationEAct. The delay in filing of revision is condoned. [Para 22][563-E-H; 564-A]

1.4 The decision of the High Court cannot be said to besustainable. The provisions of Section 5 of the Limitation Act areheld applicable to the revisional provision under Section 48 ofFthe Act of 2005. The impugned judgments and orders are setaside. [Para 23] [564-B]

Patel Brothers v. State of Assam & Ors. (2017) 2 SCC350 ;Commissioner of Customs and Central Excise v.Hongo India Private Limited(2009) 5 SCC 791 ;GHukumdev Narain Yadav v. Lalit Narain Mishra (1974)2 SCC 133 ;Sakuru v. Tanaji AIR 1985 SC 1279 ;Lata Kamat v. Vilas(1989) 2 SCC 613 ;State of W.B. &Ors. v. Kartick Chandra Das & Ors. (1996) 5 SCC342 ;Mukri Gopalan v. Cheppilat Puthanpurayil H

SUPERINTENDING ENGR./ DPHCBB MNGMT BOARD (PW) SLAPPER v.ETO, SUNDER NAGAR/ASSESSING AUTHY.

Aboobacker(1995) 5 SCC 5 ;Mangu Ram v. MunicipalCorporation of Delhi (1976) 1 SCC 392 ;Union ofIndia v. Popular Construction Co. (2001) 8 SCC 470 ;Consolidated Engineering Enterprises v. PrincipalSecretary, Irrigation Department & Ors. (2008) 7 SCC169 ;Commissioner of Customs & Central Excise v.Hongo India Pvt. Ltd. & Anr., (2009) 5 SCC 791 ;Stateof Madhya Pradesh & Anr. v. Anshuman Shukla(2014)10 SCC 814 ;Patel Brothers v. State of Assam & Ors.(2017) 2 SCC 350 ;M. P. Steel Corporation v.Commissioner of Central Excise(2015) 7 SCC 58 ;Commissioner of Customs, Central Excise, Noida v.Punjab Fibres Ltd., Noida(2008) 3 SCC 73 ;SinghEnterprises v. Commissioner of Central Excise,Jamshedpur & Ors.(2008) 3 SCC 70 ;ChaudharanaSteels Private Ltd. v. Commissioner of Central Excise,Allahabad(2009) 15 SCC 183 – referred to.

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Case Law Reference

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CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8276-B8277 of 2019.

From the Judgment and Order 19.11.2018 of the High Court ofHimachal Pradesh at Shimla in CR Nos. 224 and 225 of 2018.

With

Civil Appeal Nos. 8278, 8279, 8280, 8281 of 2019.C

Dhruv Mehta, Ajay Vohra, Sr. Advs., Yashraj Singh Deora, ShyamAgarwal, Ms. Sonal Mashankar, Anmol Mehta, Abhimanyu Jhamba,Ms. Hemlata Ranga, Ashish Jhamba, Samir Ali Khan, Ms. Kavita Jha,Shammi Kapoor, Ms. Swati Agarwal, T. Ramesh, Ms. L. Maheswari,A. Lakshminarayanan, Sandeep Goyal, Ms. A. Anamika, PawanshreeDAgrawal, Advs. for the appearing parties.

The Judgment of the Court was delivered by ARUN MISHRA, J.

1. The question involved is whether the High Court whileEexercising revisional power under Section 48 of the Himachal PradeshValue Added Tax Act, 2005 (‘the Act of 2005’), condone the delay incase a revision under Section 48 of the Act of 2005, is filed beyond 90days from the date of communication of the order or it excludes theapplicability of Section 29 of the Limitation Act, 1963, and in consequenceFof Section 5 of the Limitation Act.

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2. The High Court vide impugned judgment and order dated19.11.2018, has refused to condone the delay in the revision filed underSection 48 read with Section 64(5) of the Act of 2005, against the orderpassed by Himachal Pradesh Tax Tribunal. The Division Bench of theGHigh 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 ofthe Limitation Act, cannot be applied and the High Court cannot condonethe delay. The revision has to be filed within 90 days, as provided inSection 48 of the Act of 2005.

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SUPERINTENDING ENGR./ DPHCBB MNGMT BOARD (PW) SLAPPER v.ETO, SUNDER NAGAR/ASSESSING AUTHY. [ARUN MISHRA, J.]

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 anorder made by the tribunal under sub-section (2) of section 45 orunder sub-section (3) of section 46, may, within 90 days of thecommunication of such order, apply to the High Court of HimachalPradesh for revision of such order if it involves any question oflaw arising out of erroneous decision of law or failure to decide aquestion of law.

(2) The application for revision under sub-section (1) shall preciselystate the question of law involved in the order, and it shall becompetent for the High Court to formulate the question of law.

(3) Where an application under this section is pending, the HighCourt may, or on application, in this behalf, stay recovery of anydisputed amount of tax, penalty or interest payable or refund ofany amount due under the order sought to be revised:

Provided that no order for stay of recovery of such disputedamount shall remain in force for more than 30 days unless theapplicant furnishes adequate security to the satisfaction of theAssessing Authority concerned.

(4) The application for revision under sub-section (1) or theapplication for stay under sub-section (3) shall be heard and decidedby a bench consisting of not less than two judges.

(5) No order shall be passed under this section which adverselyaffects any person unless such person has been given a reasonableopportunity of being heard.”

4. The Division Bench of the High Court of Himachal Pradeshheld that considering the expression used in the provisions contained inSection 48(1), the High Court could not condone the delay in filingrevision. The language contained therein excludes the applicability ofSection 5 of the Limitation Act. The Court cannot also exercise theinherent powers to condone the delay. The High Court has taken intoconsideration 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 theAct of 2005. The High Court has also referred to Section 84 of the A

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AAssam Value Added Tax, 2003, which provides that provisions of Sections4 and 12 of the Limitation Act, shall apply in computing the period oflimitation in relation to the provisions contained in the chapter. It wasfurther observed that in the Act of 2005, there is no provision to inferthat any provisions of the Limitation Act apply. The decision in PatelBrothers v. State of Assam & Ors., (2017) 2 SCC 350, has been reliedBon, in which while considering the provisions contained in Section 81 ofthe Assam Value Added Tax, 2003, it was held that provisions containedin Section 5 of the Limitation Act, stand excluded by necessary implicationby the language employed in Section 84. The High Court has also referredto the decision of this Court in Commissioner of Customs and CentralCExcise v. Hongo India Private Limited, (2009) 5 SCC 791, rendered inthe context of the provisions contained in Section 35 of the Central ExciseAct, 1944, in which it has been held that reference has to be made to theHigh Court within 180 days, and there is no power of the High Court tocondone the delay after the expiry of the prescribed period of 180 days.Thus, the High Court has held that provisions of Section 5 of the LimitationDAct, are not applicable and stand excluded in the matter of revision filedunder Section 48 of the Act of 2005.

5. The provisions contained in Section 29 of the Limitation Actdeals with savings. The provisions in respect to the limitation prescribedfor any suit, appeal or application by any special or local law, is differentEfrom the period prescribed by the Schedule, the provisions of Section 3shall apply if the Schedule prescribed such period. The provisionscontained in Sections 4 to 24 shall apply only in so far as and to theextent to which they are not expressly excluded. Section 29(2) is extractedhereunder:F“29. Savings.—

(2) Where any special or local law prescribesfor any suit, appealor application a period of limitation different from the periodprescribed by the Schedule, the provisions of section 3 shall applyas if such period were the period prescribed by the Schedule andfor the purpose of determining any period of limitation prescribedfor any suit, appeal or application by any special or local law, theprovisions contained in sections 4 to 24 (inclusive) shall apply onlyin so far as, and to the extent to which, they are not expressly”excluded by such special or local law.

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(emphasis added)

6. Section 5 of the Limitation Act deals with the extension of theprescribed period in particular exigencies. The provision applies to theCourt and is excluded in the application to the provisions of Order XXIof the Code of Civil Procedure, 1908 (5 of 1908). It provides that if theCourt is satisfied that the appellant/applicant had sufficient cause for notpreferring the appeal or making the application within limitation, the Courtmay admit the same after the prescribed period. Explanation attachedto Section 5 makes it clear that in case the appellant or the applicant wasmisled by any order, practice, or judgment of the High Court in ascertainingor computing the prescribed period, may be sufficient cause within themeaning of Section 5.

7. Learned counsel appearing on behalf of appellants has placedreliance on Hukumdev Narain Yadav v. Lalit Narain Mishra, (1974)2 SCC 133, in which it has been observed that in a case where thespecial law does not exclude the provisions of Sections 4 to 24 of theLimitation Act by an express reference, it would nonetheless be open tothe Court to examine to what extent the scheme of special law excludethe operation of Limitation Act. If, on an examination of the relevantprovisions, it is clear that the provisions of the Limitation Act arenecessarily excluded, then the benefits conferred therein cannot be calledin aid to condone the delay under the Special Act. In the context ofSection 86 of Representation of People Act, it has been held that theHigh Court is bound to dismiss an election petition, which does not complywith the provisions of Section 81, 82 or 117. The election petition has tobe preferred within the period prescribed in Section 81. Thus, theprovision was held to be mandatory. The non-compliance with whichvisits the penalty of the petition being dismissed. Following observationshave been made:

“17. Though Section 29(2) of the Limitation Act has been madeapplicable to appeals both under the Act as well as under theCode of Criminal Procedure, no case has been brought to ournotice where Section 29(2) has been made applicable to an electionpetition filed under Section 81 of the Act by virtue of which eitherSections 4, 5 or 12 of the Limitation Act has been attracted. Evenassuming that where a period of limitation has not been fixed forelection petitions in the Schedule to the Limitation Act which isdifferent from that fixed under Section 81 of the Act, Section29(2) would be attracted, and what we have to determine is A

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whether the provisions of this Section are expressly excluded inthe case of an election petition. It is contended before us that thewords “expressly excluded” would mean that there must be anexpress reference made in the special or local law to the specificprovisions of the Limitation Act of which the operation is to beexcluded. As usual the meaning given in the Dictionary has beenrelied upon, but what we have to see is whether the scheme ofthe special law, that is, in this case, the Act, and the nature of theremedy provided therein are such that the Legislature intended itto be a complete code by itself which alone should govern theseveral matters provided by it. If, on an examination of the relevantprovisions, it is clear that the provisions of the Limitation Act arenecessarily excluded, then the benefits conferred therein cannotbe called in aid to supplement the provisions of the Act. In ourview, even in a case where the special law does not exclude theprovisions of Sections 4 to 24 of the Limitation Act by an expressreference, it would nonetheless be open to the Court to examinewhether and to what extent the nature of those provisions or thenature of the subject matter and scheme of the special law excludetheir operation.The provisions of Section 3 of the Limitation Actthat a suit instituted, appeal preferred and application made afterthe prescribed period shall be dismissed are provided for in Section86 of the Act which gives a peremptory command that the HighCourt shall dismiss an election petition which does not complywith the provisions of Sections 81, 82 or 117. It will be seen thatSection 81 is not the only Section mentioned in Section 86, and ifthe Limitation Act were to apply to an election petition underSection 81 it should equally apply to Sections 82 and 117 becauseunder Section 86 the High Court cannot say that by an applicationof Section 5of the Limitation Act, Section 81 is complied withwhile no such benefit is available in dismissing an application fornon-compliance with the provisions of Sections 82 and 117 of theAct, or alternatively if the provisions of the Limitation Act do notapply to Section 82 and Section 117 of the Act, it cannot be saidthat they apply to Section 81. Again Section 6 of the LimitationAct which provides for the extension of the period of limitation tillafter the disability in the case of a person who is either a minor orinsane or an idiot is inapplicable to an election petition. Similarly,Sections 7 to 24 are in terms inapplicable to the proceedings under the Act, particularly in respect of the filing of election petitionsand their trial.”

(emphasis added)

8. In Sakuru v. Tanaji, AIR 1985 SC 1279, it has been held thatthe provisions of the Limitation Act apply only to proceedings in Courtsand not to appeals or applications of bodies other than Courts such asquasi-judicial Tribunals or executive authorities. Though the bodies orauthorities may be conferred with the powers under the Codes of Civilor Criminal Procedure, however, special statute may contain an expressprovision conferring on the Appellate Authority the power to extend theprescribed period of limitation on sufficient cause being shown by layingdown that the provisions of Section 5 of the Limitation Act shall beapplicable to such proceedings. In the absence of such provisions, Section5 would have no application.

9. In Lata Kamat v. Vilas, (1989) 2 SCC 613, provisions containedin Section 28(4) of the Hindu Marriage Act, came up for consideration,wherein it was held that limitation prescribed therein is different fromthe Schedule of Limitation Act. Regarding the provisions of Section 29(2)of the Limitation Act, it was observed that the provisions of the HinduMarriage Act do not exclude the operation of the provisions of Sections4 to 24 of Limitation Act. They have been held to be applicable.Therefore, the time required for obtaining the copy of judgment has tobe excluded, as provided in Section 12(2) of Limitation Act. The Courtobserved:

“12. The Schedule in the Limitation Act does not provide for anappeal under the Hindu Marriage Act, but it is only provided insub-section (4) of Section 28 of the Hindu Marriage Act. Thusthe limitation provided, in sub-section (4) of Section 28, is differentfrom the Schedule of the Limitation Act. According to sub-section(2) of Section 29, provisions contained in Sections 4 to 24 will beapplicable unless they are not expressly excluded. It is clear thatthe provisions of the Act do not exclude the operation of provisionsof Sections 4 to 24 of the Limitation Act, and therefore it couldnot be said that these provisions will not be applicable. It is thereforeclear that to an appeal under Section 28 of the Hindu MarriageAct, provisions contained in Section 12 sub-section (2) will beapplicable; therefore, the time required for obtaining copies of the A

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judgment will have to be excluded for computing the period oflimitation for appeal. A Division Bench of Delhi High Court inChandra Dev Chadha case[1]held as under: (AIR pp. 24-25)

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“The Hindu Marriage Act is a special law. That this ‘speciallaw’ prescribes ‘for an appeal a period of limitation’ is also-evident.The period of limitation is 30 days. It is a period different fromthat prescribed in the First Schedule to the Limitation Act, 1963.But when we turn to the First Schedule, we find there is no provisionin the First Schedule for an appeal against the decree or orderpassed under the Hindu Marriage Act. Now it has been held thatthe test of a ‘prescription of a period of limitation different fromthe period prescribed by the First Schedule’ as laid down in Section29(2), Limitation Act, 1963 is satisfied even in a case where adifference between the special law and Limitation Act arose byomissions to provide for a limitation to a particular proceedingunder the Limitation Act, see, Canara Bank, Bombay v. WardenInsurance Co. Ltd., Bombay, AIR 1953 Bom 35, approved bythe Supreme Court in Vidyacharan Shukla v. KhubchandBaghel[2].

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Once the test is satisfied, the provisions of Sections 3, 4 to 24,Limitation Act, 1963 would at once apply to the special law. Theresult is that the court hearing the appeal from the decree or orderpassed under the Hindu Marriage Act would under Section 3 ofthe Limitation Act have the power to dismiss the appeal if madeafter the period of limitation of 30 days prescribed therefor by thespecial law. Similarly, under Section 5 for sufficient cause, it willhave the power to condone the delay. Likewise, under Section12(2), the time spent in obtaining a certified copy of the decree ororder appealed from will be excluded. If it is so, Section 12(2) ofthe Limitation Act is attracted, and the appellants in all three appealswill be entitled to exclude the time taken by them for obtaining acertified copy of the decree and order. The appeals are, therefore,within time.”

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Similar is the view taken by the Calcutta High Court in SipraDey case[3]and also the M.P. High Court in Kantibai case[4]. It is1 AIR 1979 Del 222 AIR 1964 SC 10993 AIR 1988 Cal 28H4 AIR 1978 MP 245

therefore clear that the contention advanced by the learned counselfor the respondent based on the Limitation Act also is of nosubstance.”

10. In State of W.B. & Ors. v. Kartick Chandra Das & Ors,(1996) 5 SCC 342, provisions of Section 29 of the Limitation Act cameup for consideration concerning the letters patent appeal filed in contemptproceedings. It has been observed that there is no express exclusion ofprovisions of Sections 4 to 24 of Limitation Act by a special or local law,thus, on the strength of Section 29(2), Section 5 of Limitation Act becomesapplicable. The Court held:

4. It is not in dispute that under Section 19 of the Contempt ofCourts Act, 1971, an appeal would lie to the Division Bench, andlimitation of 30 days from the date of the order has been prescribedsubject to the exclusion of the time taken for obtaining the certifiedcopy thereof. We have seen that the Appellate Side Rules of theCalcutta High Court applicable to the area other than the city ofCalcutta had not expressly excluded the application of the limitationunder the Limitation Act.

5. The learned counsel for the respondent sought to contend thatby operation of Rule 3 of Chapter 8 of the Appellate Side Rulesunder the Letters Patent the memorandum of appeal drawn upunder Order 41 Rule 1 CPC requires to be complied with asenvisaged thereunder since it had not been provided with anylimitation. The Division Bench was, therefore, right in holding thatthe Limitation Act was not extended for an appeal filed underclause 15 of the Letters Patent against the order passed by thelearned Single Judge under the provisions of the Contempt ofCourts Act. It is seen that under the Contempt of Courts Act, theHigh Court has framed the Rules. Rule 35 envisages that:

“35. In respect of appeals from the orders of any Judge orBench of the original side, the rules of the original side relatingto appeals and in respect of appeals from the order of anyJudge or Bench of the appellate side, the rules of the appellateside shall apply mutatis mutandis.”

Therefore, for the appeals filed under clause 15 of the LettersPatent against the order of the learned Single Judge for the A

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contempt proceedings by necessary consequences, the procedureprescribed in the appellate side would also be applicable andfollowed.

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7. In consequence, by operation of Section 29(2) read with SectionB3 of the Limitation Act, limitation stands prescribed as a speciallaw under Section 19 of the Contempt of Courts Act, and limitationin filing Letters Patent appeal stands attracted. In consequence,Sections 4 to 24 of the Limitation Act stands attracted to LettersPatent appeal insofar as and to the extent to which they are notCexpressly excluded either by special or local law. Since the rulesmade on the appellate side, either for entertaining the appealsunder clause 15 of the Letters Patent or appeals arising under thecontempt of courts, had not expressly excluded, Section 5 of theLimitation Act becomes applicable. We hold that Section 5 of theLimitation Act does apply to the appeals filed against the order ofDthe learned Single Judge for the enforcement by way of a contempt.The High Court, therefore, was not right in holding that Section 5of the Limitation Act does not apply. The delay stands condoned.Since the High Court had not dealt with the matter on merits, wedecline to express any opinion on merits. The case stands remittedEto the Division Bench for decision on merits.”

11. In Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker,(1995) 5 SCC 5, the question arose whether Appellate Authorityconstituted under Section 18 of Kerala Buildings (Lease and Rent Control)Act, 1965 has the power to condone the delay in filing of the appeal.FThe Appellate Authority dismissed the appeal on the ground that it hadno power to condone the delay. The application for condonation ofdelay was not maintainable. This Court held that the Appellate Authorityunder Section 18 of Kerala Buildings (Lease and Rent Control) Act,1965, acts as a Court and not a persona designatum, it can condonethe delay under Section 5 of Limitation Act as the two requirements forGthe applicability of Section 29 are satisfied, namely, (i) different periodsof limitation being prescribed under the local law; and (ii) there is noexpress exclusion of provisions of Limitation Act. Following are therelevant observations:

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“9. If the aforesaid two requirements are satisfied, theconsequences contemplated by Section 29(2) would automaticallyfollow. These consequences are as under:

(i) In such a case, Section 3 of the Limitation Act would apply asif the period prescribed by the special or local law was the periodprescribed by the Schedule.

(ii) For determining any period of limitation prescribed by suchspecial or local law for a suit, appeal or application all the provisionscontaining Sections 4 to 24 (inclusive) would apply insofar as andto the extent to which they are not expressly excluded by suchspecial or local law.

10. In the light of the aforesaid analysis of the relevant clauses ofSection 29(2) of the Limitation Act, let us see whether Section 18of the Rent Act providing for a statutory appeal to the appellateauthority satisfies the aforesaid twin conditions for attracting theapplicability of Section 29(2) of the Limitation Act. It cannot bedisputed that Kerala Rent Act is a special Act or a local law. Italso cannot be disputed that it prescribes for appeal under Section18 a period of limitation which is different from the periodprescribed by the Schedule as the Schedule to the Limitation Actdoes not contemplate any period of limitation for filing appeal beforethe appellate authority under Section 18 of the Rent Act or inother words it prescribes nil period of limitation for such an appeal.It is now well settled that a situation wherein a period of limitationis prescribed by a special or local law for an appeal or applicationand for which there is no provision made in the Schedule to theAct, the second condition for attracting Section 29(2) would getsatisfied. As laid down by a majority decision of the ConstitutionBench of this Court in the case of Vidyacharan Shukla v.Khubchand Baghel[5], when the First Schedule of the LimitationAct prescribes no time-limit for a particular appeal, but the speciallaw prescribes a time-limit for it, it can be said that under the FirstSchedule of the Limitation Act all appeals can be filed at anytime, but the special law by limiting it provides for a differentperiod, while the former permits the filing of an appeal at anytime, the latter limits it to be filed within the prescribed period. It A

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is, therefore, different from that prescribed in the former, andthus Section 29(2) would apply even to a case where a differencebetween the special law and Limitation Act arose by the omissionto provide for limitation to a particular proceeding under theLimitation Act.

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B11. It is also obvious that once the aforesaid two conditions aresatisfied, Section 29(2), on its own force will get attracted toappeals filed before appellate authority under Section 18 of theRent Act. When Section 29(2) applies to appeals under Section18 of the Rent Act, for computing the period of limitation prescribedfor appeals under that Section, all the provisions of Sections 4 toC24 of the Limitation Act would apply. Section 5, being one ofthem, would, therefore, get attracted. It is also obvious that thereis no express exclusion anywhere in the Rent Act, taking out theapplicability of Section 5 of the Limitation Act to appeals filedbefore appellate authority under Section 18 of the Act.DConsequently, all the legal requirements for applicability of Section5 of the Limitation Act to such appeals in the light of Section29(2) of Limitation Act can be said to have been satisfied. Thatwas the view taken by the minority decision of the learned SingleJudge of Kerala High Court in Jokkim Fernandez v. Amina KunhiUmma[6]. The majority did not agree on account of its wrongEsupposition that appellate authority functioning under Section 18of the Rent Act is a persona designata. Once that presumption isfound to be erroneous as discussed by us earlier, it becomes atonce clear that minority view in the said decision was the correctview and the majority view was an erroneous view.”

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It has been held that if there is no express exclusion in the local orspecial law, then the provisions contained in Sections 4 to 24 of theLimitation Act shall apply by the provisions contained in Section 29(2) ofthe Limitation Act.

12. In Mangu Ram v. Municipal Corporation of Delhi, (1976)G1 SCC 392, question came up for consideration when the application ofSection 5 of the Limitation Act is to be excluded and whether peremptoryor imperative language of the special or local law can exclude theapplication of Section 5, if not otherwise explicitly excluded. The 6 AIR 1974 Ker 162H

Municipal Corporation of Delhi against the acquittal order, filed anapplication in the High Court of Delhi under Section 417, sub-Section (3)of Code of Criminal Procedure, 1898 for special leave to appeal fromthe order of acquittal. Section 417(4) of the Code of Criminal Procedurerequired that application for special leave should be filed before the expiryof sixty days. The application for special leave should have been filedon 25.8.1971, but it was filed on 27.8.1971. The argument was raisedthat time frame is sixty days as prescribed in Section 417(4) for makingan application for special leave under sub-Section (3) of that sectionwas mandatory and inexorable time limit which could not be relievedagainst or relaxed, and it excluded the applicability of Section 5 of theLimitation Act. It has also been held that the provision of a period oflimitation in a howsoever peremptory or imperative language is notsufficient to displace the applicability of Section 5. The provisions ofSection 5 of the Limitation Act have been held to be applicable to condonethe delay in applying under Section 417(4), Code of Criminal Procedure.The Court has observed:

“6. The question which arose for consideration in Kaushalya Ranicase was apparently the same as in the present case, namely,whether the time limit of sixty days prescribed in sub-section (4)of Section 417 for making an application for special leave undersub-section (3) of that section could be extended by invokingSection 5 of the Indian Limitation Act, 1908. This Court held thatsub-section (4) of Section 417 laid down a special period oflimitation for an application by a complainant for special leave toappeal against an order of acquittal and

“in that sense, this rule of sixty days bar is a special law, that is tosay, a rule of limitation which is specially provided for in the Codeitself, which does not ordinarily provide for a period of limitationfor appeals or applications.

This Court pointed out that since

“the special rule of limitation laid down in sub-section (4) of Section417 of the Code is a special law of limitation governing appeals byprivate prosecutors, there is no difficulty in coming to the conclusionthat Section 5 of the Limitation Act is wholly out of the way, inview of Section 29(2)(b) of the Limitation Act.”

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The applicability of Section 5 of the Indian Limitation Act, 1908was thus held to be excluded in determining the period of limitationof sixty days prescribed in sub-section (4) of Section 417 by reasonof Section 29(2)(b) of that Act, which provided in so many termsthat “for the purpose of determining any period of limitation prescribedfor any suit, appeal or application by any special or local law, theremaining provisions of this Act”

that is, sections other than Sections 4, 9 to 18, and 22 “shall notapply.” Now, there can be no doubt that if the present case weregoverned by the Indian Limitation Act, 1908, this decision wouldwholly apply and the Municipal Corporation of Delhi would not beentitled to invoke the aid of Section 5 of that Act for the purposeof extending the period of limitation of sixty days prescribed insub-section (4) of Section 417 for an application by a complainantfor special leave to appeal against an order of acquittal. But theIndian Limitation Act, 1908 has clearly no application in the presentcase since that Act is repealed by the Limitation Act, 1963 whichcame into force with effect from January 1, 1964, and the presentcase must, therefore, be decided by reference to the provisions ofthe Limitation Act, 1963.

7. There is an important departure made by the Limitation Act,1963 insofar as the provision contained in Section 29, sub-section(2), is concerned. Whereas, under the Indian Limitation Act, 1908,Section 29, sub-section (2), clause (b) provided that for the purposeof determining any period of limitation prescribed for any suit,appeal or application by any special or local law, the provisions ofthe Indian Limitation Act, 1908, other than those contained inSections 4, 9 to 18 and 22, shall not apply and, therefore, theapplicability of Section 5 was in clear and specific terms excluded,Section 29, sub-section (2) of the Limitation Act, 1963 enacts inso many terms that for the purpose of determining the period oflimitation prescribed for any suit, appeal or application by anyspecial or local law the provisions contained in Sections 4 to 24,which would include Section 5, shall apply insofar as and to theextent to which they are not expressly excluded by such specialor local law. Section 29, sub-section (2), clause (b) of the Indian

Limitation Act, 1908 specifically excluded the applicability ofSection 5, while Section 29, sub-section (2) of the Limitation Act,1963, in clear and unambiguous terms, provides for the applicabilityof Section 5 and the ratio of the decision in Kaushalya Ranicase[7] can, therefore, have no application in cases governed bythe Limitation Act, 1963, since that decision proceeded on thehypothesis that the applicability of Section 5 was excluded byreason of Section 29(2)(b) of the Indian Limitation Act, 1908.Since under the Limitation Act, 1963, Section 5 is specifically madeapplicable by Section 29, sub-section (2), it can be availed of forthe purpose of extending the period of limitation prescribed by aspecial or local law, if the applicant can show that he had sufficientcause for not presenting the application within the period oflimitation. It is only if the special or local law expressly excludesthe applicability of Section 5 that it would stand displaced. Here,as pointed out by this Court in Kaushalya Rani case, the timelimit of sixty days laid down in sub-section (4) of Section 417 is aspecial law of limitation, and we do not find anything in this speciallaw which expressly excludes the applicability of Section 5. It istrue that the language of sub-section (4) of Section 417 ismandatory and compulsive, in that it provides in no uncertain termsthat no application for grant of special leave to appeal from anorder of acquittal shall be entertained by the High Court after theexpiry of sixty days from the date of that order of acquittal. Butthat would be the language of every provision prescribing a periodof limitation. It is because a bar against entertainment of anapplication beyond the period of limitation is created by a specialor local law that it becomes necessary to invoke the aid of Section5 in order that the application may be entertained despite suchbar. Mere provision of a period of limitation in howsoeverperemptory or imperative language is not sufficient to displacethe applicability of Section 5. The conclusion is, therefore,irresistible that in a case where an application for special leave toappeal from an order of acquittal is filed after the coming intoforce of the Limitation Act, 1963, Section 5 would be available tothe applicant and if he can show that he had sufficient cause fornot preferring the application within the time limit of sixty daysprescribed in sub-section (4) of Section 417, the application would 7 AIR 1964 SC 260

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Anot be barred and despite the expiration of the time limit of sixtydays, the High Court would have the power to entertain it. TheHigh Court, in the present case, did not, therefore, act withoutjurisdiction in holding that the application preferred by the MunicipalCorporation of Delhi was not barred by the time limit of sixtydays laid down in sub-section (4) of Section 417 since the MunicipalBCorporation of Delhi had sufficient cause for not preferring theapplication within such time limit. The order granting special leavewas in the circumstances, not an order outside the power of theHigh Court.”

13. In Union of India v. Popular Construction Co., (2001) 8CSCC 470, the Court considered the question of applicability of theprovisions contained in Section 5 of the Limitation Act to the proceedingsunder Section 34(3) of the Arbitration and Conciliation Act, 1996. Theprovisions contained in Section 34 of the Arbitration and ConciliationAct, 1996, came up for consideration. Relevant provisions contained inDSection 34(3) is extracted hereunder:

“34. Application for setting aside arbitral award.—

(3) An application for setting aside may not be made after threemonths have elapsed from the date on which the party makingthat application had received the arbitral award or, if a requestEhad been made under Section 33, from the date on which thatrequest had been disposed of by the Arbitral Tribunal:

Provided that if the court is satisfied that the applicant wasprevented by sufficient cause from making the application withinthe said period of three months, it may entertain the applicationFwithin a further period of thirty days, but not thereafter.”

Proviso to Section 34(3) provides three months period for makingan application. The Court, if satisfied on sufficient cause shown, mayentertain the application within a further period of thirty days, but notthereafter. In Popular Construction Co. (supra) the Court held:

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“8. Had the proviso to Section 34 merely provided for a periodwithin which the court could exercise its discretion, that wouldnot have been sufficient to exclude Sections 4 to 24 of the LimitationAct because “mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displacethe applicability of Section 5”[ 8].

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11. Thus, where the legislature prescribed a special limitation forthe purpose of the appeal and the period of limitation of 60 dayswas to be computed after taking the aid of Sections 4, 5 and 12 ofthe Limitation Act, the specific inclusion of these sections meantthat to that extent only the provisions of the Limitation Act stoodextended and the applicability of the other provisions, by necessaryimplication stood excluded[9].

12. As far as the language of Section 34 of the 1996 Act isconcerned, the crucial words are “but not thereafter” used in theproviso to sub-section (3). In our opinion, this phrase would amountto an express exclusion within the meaning of Section 29(2) ofthe Limitation Act and would, therefore, bar the application ofSection 5 of that Act. Parliament did not need to go further. Tohold that the court could entertain an application to set aside theaward beyond the extended period under the proviso, would renderthe phrase “but not thereafter” wholly otiose. No principle ofinterpretation would justify such a result.”

It has been held that had the proviso to Section 34 merely providedfor a period within which the Court could exercise its discretion, thatwould not have been sufficient to exclude Sections 4 to 24 of the LimitationAct. However, the expression in Section 34 “but not thereafter” wouldamount to express exclusion within the meaning of Section 29(2) of theLimitation Act.

14. In Consolidated Engineering Enterprises v. PrincipalSecretary, Irrigation Department & Ors., 2008 (7) SCC 169, thequestion arose for consideration concerning the limitation period prescribedin Section 34(3) of the Arbitration & Conciliation Act, for setting asideof the arbitral award. It has been held that Section 14 of the LimitationAct is not excluded. However, applicability of Section 5 of the LimitationAct is excluded. Following is the relevant discussion:

“53. Sub-section (3) of Section 34 of the AC Act prescribes theperiod of limitation for filing an application for setting aside an 8 Mangu Ram v. Municipal Corpn. of Delhi, (1976) 1 SCC 392 at p. 397, para 7.

9 Patel Naranbhai Margabhai v. Dhulabhai Galbabhai, (1992) 4 SCC 264.

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award as three months from the date on which the applicant hasreceived the arbitral award. The proviso thereto vests in the courtdiscretion to extend the period of limitation by a further period notexceeding thirty days if the court is satisfied that the applicantwas prevented by sufficient cause for not making the applicationwithin three months. The use of the words “but not thereafter” inthe proviso makes it clear that even if a sufficient cause is madeout for a longer extension, the extension cannot be beyond thirtydays. The purpose of proviso to Section 34(3) of the AC Act issimilar to that of Section 5 of the Limitation Act, which also relatesto extension of the period of limitation prescribed for anyapplication or appeal. It vests a discretion in a court to extend theprescribed period of limitation if the applicant satisfies the courtthat he had sufficient cause for not making the application withinthe prescribed period. Section 5 of the Limitation Act does notplace any outer limit in regard to the period of extension, whereasthe proviso to sub-section (3) of Section 34 of the AC Act placesa limit on the period of extension of the period of limitation. Thusthe proviso to Section 34(3) of the AC Act is also a provisionrelating to extension of period of limitation, but differs from Section5 of the Limitation Act, in regard to period of extension, and hasthe effect of excluding Section 5 alone of the Limitation Act.

54. On the other hand, Section 14 contained in Part III of theLimitation Act does not relate to extension of the period of limitationbut relates to exclusion of certain period while computing the periodof limitation. Neither subsection (3) of Section 34 of the AC Actnor any other provision of the AC Act exclude the applicability ofSection 14 of the Limitation Act to applications under Section34(1) of the AC Act. Nor will the proviso to Section 34(3) excludethe application of Section 14, as Section 14 is not a provision forextension of period of limitation, but for exclusion of certain periodwhile computing the period of limitation. Having regard to Section29(2) of the Limitation Act, Section 14 of that Act will be applicableto an application under Section 34(1) of the AC Act. Even whenthere is cause to apply Section 14, the limitation period continuesto be three months and not more, but in computing the limitationperiod of three months for the application under Section 34(1) ofthe AC Act, the time during which the applicant was prosecutingsuch application before the wrong court is excluded, provided the proceeding in the wrong court was prosecuted bona fide, withdue diligence. Western Builders[10], therefore, lays down the correctlegal position.”

15. In Commissioner of Customs & Central Excise v. HongoIndia Pvt. Ltd. & Anr., (2009) 5 SCC 791, the question arose forconsideration whether the High Court has the power to condone delaybeyond the period specified in section 35-H of the Central Excise Act.The limitation for an appeal and reference is within 180 days from thedate of communication of the decision or order. Because of the provisionsand the Act, it was held that the time limit prescribed for making areference to the High Court is absolute and unextendible by Court undersection 5 of the Limitation Act. The Central Excise Act has been held tobe a complete Code by itself. The import of “expressly excluded” insection 29(2) was considered, and it has been observed that even in theabsence of express exclusion, the court can examine the extent ofexclusion of Limitation Act by a special law, based on the provisions orthe nature of the subject matter. This Court has considered the schemeof the various provisions and the scheme thereunder thus:

“4. Chapter VI-A of the Act deals with appeals. As per Section35, any person aggrieved by any decision or order passed by aCentral Excise Officer may file an appeal to the Commissioner ofCentral Excise (Appeals) within sixty days from the date of thecommunication to him of such decision or order. The proviso tosub-section (1) enables the Commissioner (Appeals) if he issatisfied that the appellant was prevented by sufficient cause frompresenting the appeal within the aforesaid period of sixty days, toallow it to be presented within a further period of thirty days.

5. Section 35-B speaks about appeals to the Appellate Tribunal.Any person aggrieved by certain decisions/orders passed by theCommissioner of Central Excise or the Commissioner (Appeals),may prefer an appeal to the Appellate Tribunal within three monthsfrom the date on which the order sought to be appealed against iscommunicated to the officer concerned or the other party. Sub-section (5) enables the Appellate Tribunal to condone delay evenbeyond the prescribed period if there was sufficient cause for notpresenting it within that period.

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6. Section 35-EE provides for revision by the Central Government.As per sub-section (2), an application under sub-section (1) shallbe made within three months from the date of the communication.However, proviso to sub-section (2) enables the revisional authorityto condone the delay for a further period of ninety days, if sufficientcause is shown.

7. Unamended Section 35-G speaks about appeal to the HighCourt. Sub-section 2(a) enables the aggrieved person to file anappeal to the High Court within 180 days from the date on whichthe order appealed against is received by the Commissioner ofCentral Excise or the other party. There is no provision to condonethe delay in filing appeal beyond the prescribed period of 180days.

8. Unamended Section 35-H speaks about reference applicationto the High Court. As per sub-section (1), the Commissioner ofCentral Excise or the other party within a period of 180 days ofthe date upon which he is served with notice of an order underSection 35-C direct the Tribunal to refer to the High Court anyquestion of law arising from such order of the Tribunal. Hereagain, as per sub-section (1), application for reference is to bemade to the High Court within 180 days, and there is no provisionto extend the period of limitation for filing the application to theHigh Court beyond the said period and to condone the delay.

9. In these three appeals, we are concerned with “referenceapplication” made to the High Court under Section 35-H(1) of theAct before amendment of the Central Excise Act by Act 49 of2005 (w.e.f. 28-12-2005) by which several provisions of the Actwere omitted including Section 35-H. However, in view of thereference made, it is but proper to consider the question referredbefore us.

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32. As pointed out earlier, the language used in Sections 35, 35-B,35-EE, 35-G, and 35-H makes the position clear that an appealand reference to the High Court should be made within 180 daysonly from the date of communication of the decision or order. Inother words, the language used in other provisions makes theposition clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 daysafter expiry of 60 days, which is the preliminary limitation periodfor preferring an appeal. In the absence of any clause condoningthe delay by showing sufficient cause after the prescribed period,there is complete exclusion of Section 5 of the Limitation Act.The High Court was, therefore, justified in holding that there wasno power to condone the delay after expiry of the prescribedperiod of 180 days.”

The Court has also taken note of the fact that the sufficient periodof limitation of 180 days has been provided for reference, provision forcondonation of delay was not made in filing the reference. The legislatureintended that there should not be any condonation of delay beyond 180days. The Court has observed with respect to the sufficiency of a periodof 180 days which is more than the period prescribed for an appeal andrevision thus:

“33. Even otherwise, for filing an appeal to the Commissioner,and to the Appellate Tribunal as well as revision to the CentralGovernment, the legislature has provided 60 days and 90 daysrespectively, on the other hand, for filing an appeal and referenceto the High Court larger period of 180 days has been providedwith to enable the Commissioner and the other party to avail thesame. We are of the view that the legislature provided sufficienttime, namely, 180 days for filing reference to the High Court,which is more than the period prescribed for an appeal andrevision.”

Under the scheme of the Act and the provision of limitation of180 days, for filing reference to the High Court was more than the periodprescribed for an appeal and revision.

16. In State of Madhya Pradesh & Anr. v. Anshuman Shukla,(2014) 10 SCC 814, a 3-Judge Bench of this Court held that even if theamendment to section 19 of the M.P. Madhyastham AdhikaranAdhiniyam, 1983 was made in 2005, as the court had the power to takesuo moto cognizance and call for record of an award at any time, therewas no legislative intent to exclude the applicability of section 5 of theLimitation Act. Apart from that, this Court observed that section 19 ofthe Act of 1983, did not contain any express rider on the power of theHigh Court to entertain an application for revision after the expiry of the A

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Aprescribed limitation thereunder. Thus, the provisions of section 29(2)are applicable in the absence of such rider, and delay in filing the revisionwas condoned. The Court observed:

“32. Section 19 of the 1983 Act does not contain any expressrider on the power of the High Court to entertain an applicationfor revision after the expiry of the prescribed period of threemonths. On the contrary, the High Court is conferred with suomotu power, to call for the record of an award at any time. Itcannot, therefore, be said that the legislative intent was to excludethe applicability of Section 5 of the Limitation Act to Section 19 ofthe 1983 Act.

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33. In our opinion, it is unnecessary to delve into the questionwhether the Arbitral Tribunal constituted under the Act is a courtor not for answering the issue in the present case as the delay infiling the revision has occurred before the High Court, and not theArbitral Tribunal.

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34. In light of the reasons recorded above, we are of the opinionthat the case of Nagar Palika Parishad, Morena[11], was decidederroneously. Section 5 of the Limitation Act is applicable to SectionE19 of the 1983 Act. No express exclusion has been incorporatedtherein, and there is neither any evidence to suggest that thelegislative intent was to bar the application of Section 5 of theLimitation Act on Section 19 of the 1983 Act. The cases whichwere relied upon to dismiss the special leave petition, namely,Nasiruddin[12] and Popular Construction[13], can be distinguishedFboth in terms of the facts as well as the law applicable, and thus,have no bearing on the facts of the present case.”

The provision of section 19(1) of the Madhya PradeshMadhyastham Adhikaran Adhiniyam, 1983 is extracted hereunder:

“19. High Court’s power of revision.—(1) The High Court maysuo motu at any time or on an application for revision made to itwithin three months of the award by an aggrieved party, call forthe record of any case in which an award has been made under G

11 (2004) 2 MPJR (SN) 37412 (2003) 2 SCC 577H13 (2001) 8 SCC 470

this Act by issuing a requisition to the Tribunal, and upon receiptof such requisition, the Tribunal shall send or cause to be sent tothat Court the concerned award and record thereof.”

17. In Patel Brothers v. State of Assam & Ors., 2017 (2) SCC350, the question came up for consideration concerning the provisionscontained in the Assam Value Added Tax Act. This Court consideredthe provisions contained in sections 81 and 84 of the VAT Act read withsections 5 and 29(2) of the Limitation Act. In the matter of condoningthe delay in filing revision in the High Court, it has been held that giventhe provisions contained in sections 81 and 84 of the VAT Act, theprovisions of section 5 of the Limitation Act cannot be said to be applicable.There can be implied exclusion of the provisions of section 29(2) of theLimitation Act. Even in the absence of express exclusion of the provisionsof the Limitation Act, it is open to a court to consider the implied exclusion.It has been held:

“20. Thus, the approach which is to be adopted by the Court insuch cases is to examine the provisions of the special law to arriveat a conclusion as to whether there was legislative intent to excludethe operation of the Limitation Act. In the instant case, we findthat Section 84 of the VAT Act made only Sections 4 and 12 ofthe Limitation Act applicable to the proceedings under the VATAct. The apparent legislative intent, which can be clearly evinced,is to exclude other provisions, including Section 5 of the LimitationAct. Section 29(2) stipulates that in the absence of any expressprovision in a special law, provisions of Sections 4 to 24 of theLimitation Act would apply. If the intention of the legislature wasto make Section 5, or for that matter, other provisions of theLimitation Act applicable to the proceedings under the VAT Act,there was no necessity to make specific provision like Section 84thereby making only Sections 4 and 12 of the Limitation Actapplicable to such proceedings, inasmuch as these two sectionswould also have become applicable by virtue of Section 29(2) ofthe Limitation Act. It is, thus, clear that the legislature intendedonly Sections 4 and 12 of the Limitation Act, out of Sections 4 to24 of the said Act, applicable under the VAT Act, thereby excludingthe applicability of the other provisions.

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21. The judgment in Mangu Ram[14], would not come to the aid ofthe appellant as the Court found that there was no provision underCrPC from which legislative intent to exclude Section 5 of theLimitation Act could be discerned and, therefore, Section 29(2) ofthe Limitation Act was taken aid of. Similar situation prevailed inAnshuman Shukla case[15]. On the contrary, in the instant case, ascrutiny of the scheme of the VAT Act goes to show that it is acomplete code not only laying down the forum but also prescribingthe time-limit within which each forum would be competent toentertain the appeal or revision. The underlying object of the Actappears to be not only to shorten the length of the proceedingsinitiated under the different provisions contained therein but alsoto ensure finality of the decision made thereunder. The fact thatthe period of limitation described therein has been equally madeapplicable to the assessee as well as the Revenue lends amplecredence to such a conclusion. We, therefore, unhesitatingly holdthat the application of Section 5 of the Limitation Act, 1963 to aproceeding under Section 81(1) of the VAT Act, stands excludedby necessary implication, by virtue of the language employed inSection 84.”

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This Court has considered section 84 of the VAT Act of Assam.Same is as follows:E

“84. Application of Sections 4 and 12 of the Limitation Act, 1963.—In computing the period of limitation under this Chapter, theprovisions of Sections 4 and 12 of the Limitation Act, 1963, shall,so far as may be, apply.”

F Section 81 deals with revision, and section 84 deals with theLimitation Act. Section 84 makes a vital difference for the Chapter inwhich the provision of section 81 finds a place. Only the provisions ofsections 4 and 12 of the Limitation Act are made applicable, and otherprovisions stand excluded by limited application of the provisions of theLimitation Act. The decision under the Assam VAT Act has turned onGthe aforesaid crucial provision of section 84.

18. In M. P. Steel Corporation v. Commissioner of CentralExcise, (2015) 7 SCC 58, this Court considered the connotations of the 14 (1976) 1 SCC 392H15 (2014) 10 SCC 814

court and civil proceedings under section 14 of the Limitation Act andthe provisions were held applicable to the proceedings in the case of theappeal being filed under section 120 of the Customs Act.

19. In Commissioner of Customs, Central Excise, Noida v.Punjab Fibres Ltd., Noida, (2008) 3 SCC 73, a question arose ofcondonation of delay in filing reference application to the High Court. Ithas been held that section 5 is not applicable. In the said case, the courthas followed the decision in Singh Enterprises v. Commissioner ofCentral Excise, Jamshedpur & Ors., (2008) 3 SCC 70. In SinghEnterprises (supra), it has been held:

“6. At this juncture, it is relevant to take note of Section 35 of theAct which reads as follows:

“35. Appeals to Commissioner (Appeals).—(1) Any personaggrieved by any decision or order passed under this Act by aCentral Excise Officer, lower in rank than a Commissioner ofCentral Excise, may appeal to the Commissioner of CentralExcise (Appeals) [hereafter in this Chapter referred to as theCommissioner (Appeals)] within sixty days from the date ofthe communication to him of such decision or order:

Provided that the Commissioner (Appeals) may if he is satisfiedthat the appellant was prevented by sufficient cause frompresenting the appeal within the aforesaid period of sixty days,allow it to be presented within a further period of thirty days.

(2) Every appeal under this section shall be in the prescribedform and shall be verified in the prescribed manner.”

8. The Commissioner of Central Excise (Appeals) as also theTribunal being creatures of statute are not vested with jurisdictionto condone the delay beyond the permissible period provided underthe statute. The period up to which the prayer for condonationcan be accepted is statutorily provided. It was submitted that thelogic of Section 5 of the Limitation Act, 1963 (in short “theLimitation Act”) can be availed for condonation of delay. Thefirst proviso to Section 35 makes the position clear that the appealhas to be preferred within three months from the date ofcommunication to him of the decision or order. However, if the A

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Commissioner is satisfied that the appellant was prevented bysufficient cause from presenting the appeal within the aforesaidperiod of 60 days, he can allow it to be presented within a furtherperiod of 30 days. In other words, this clearly shows that theappeal has to be filed within 60 days, but in terms of the proviso,further 30 days’ time can be granted by the appellate authority toentertain the appeal. The proviso to sub-section (1) of Section 35makes the position crystal clear that the appellate authority hasno power to allow the appeal to be presented beyond the periodof 30 days. The language used makes the position clear that thelegislature intended the appellate authority to entertain the appealby condoning delay only up to 30 days after the expiry of 60 days,which is the normal period for preferring appeal. Therefore, thereis complete exclusion of Section 5 of the Limitation Act. TheCommissioner and the High Court were therefore justified inholding that there was no power to condone the delay after theexpiry of 30 days’ period.”

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20. In Chaudharana Steels Private Ltd. v. Commissioner ofCentral Excise, Allahabad, (2009) 15 SCC 183, the question of delayin filing an appeal under section 35-G of the Central Excise Act, 1944came up for consideration. The Court held that the High Court has nopower to condone the delay and followed the decision in Punjab FibresELtd. (supra).

21. In the light of the decisions as mentioned earlier, when weexamine the scheme of the Act of 2005, the provisions contained insection 45 provides for an appeal from every original order passed underthe Act or the Rules made thereunder. Sub-section (4) of section 45provides appeal to be filed within 60 days, or such more extended periodas the appellate authority may allow, for reasons to be recorded in writing.Thus, because of the provisions contained in section 45(4), the principlesof section 5 would apply to an appeal before the appellate authority,which otherwise in the absence of specific provision would not haveapplied to authority. The revision is provided to the Commissioner suomotu under the provisions of section 46(1), and the period provided is 5years for suo motu exercise of revisional power. However, the tribunalhas the power to entertain application within 60 days from the date ofcommunication of the order. When we consider the provisions of section48, revision is provided to the High Court, and an aggrieved person may F

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within 90 days of the communication of such order, file a revision. Section48(1) nowhere expressly excludes the applicability of provisions of theLimitation Act. The provisions of section 5 are applicable to Section 48as they are not expressly excluded by the provisions under the Act of2005. More so, in view of the provisions in section 45(4), which makesprovisions to condone the delay like the Limitation Act, conferring powerupon an authority also to condone delay. Further, suo motu revision hasalso been provided under section 46. In section 48, there is no expressexclusion. Because of the scheme of the Act, it cannot be inferred thatby implication, the provisions of section 5 of the Limitation Act areexcluded. Provisions contained in section 29(2) of the Limitation Actwould be attracted as there is no express exclusion or by implication, inview of the provisions of the Act of 2005. We hold that by virtue of theprovisions contained in section 29(2), provisions of section 5 of theLimitation Act would apply to proceedings under Section 48 of the Actof 2005.

22. The High Court has relied upon the decision of this Court inPatel Brothers (supra) in the context of the Assam VAT Act in whichthe abovementioned provision of section 84 made the difference, whichmakes specific provision that only sections 4 and 12 of the LimitationAct are applicable. Consequently, it follows that other provisions are notapplicable. The decision in Hongo India Private Limited (supra) alsoturned on the scheme of the Excise Act. The scheme of the Excise Actis materially different than that of the Himachal Pradesh VAT Act. Thus,the decision in HongoIndia Private Limited (supra) also cannot besaid to be applicable to interpret the Himachal Pradesh VAT Act. As therevision under the Act of 2005 lies to the High Court, the provisions ofsection 5 of the Limitation Act are applicable, and there is no expressexclusion of the provisions of section 5 and as per section 29(2), unlessa special law expressly excludes the provision, sections 4 to 24 of theLimitation Act are applicable. When we consider the scheme of theHimachal Pradesh VAT Act, 2005, it is apparent that its scheme is notousting the provisions of the Limitation Act from its ken which makesprinciples of section 5 applicable even to an authority in the matter offiling an appeal but for the said provision the authority would not havethe power to condone the delay. By implication also, it is apparent thatthe provisions of Section 5 of the Limitation Act have not been ousted;they have the play for condoning the limitation under Section 48 of the A

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AAct of 2005. Suo motu provision of revisional power is also provided tothe Commissioner within 5 years. Thus, the intendment is not to excludethe Limitation Act. We condone the delay in filing of revision.

23. We are of the considered view that the decision of the HighCourt cannot be said to be sustainable. The provisions of Section 5 ofBthe Limitation Act are held applicable to the revisional provision underSection 48 of the Act of 2005. The impugned judgments and orders areset aside; the cases are remitted to the High Court to examine the sameon merits in accordance with the law.

CNidhi Jain

Matter remitted to High Court.

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