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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.      49-50 OF 2017 (ARISING OUT OF SLP (C) NOS. 21865-21872 OF 2016)

M/S PATEL BROTHERS .....APPELLANT(S)

VERSUS

STATE OF ASSAM AND ORS. .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

Leave granted.

2. The question of law which has fallen for determination in these

appeals is as to whether provisions of Section 5 of the Limitation

Act, 1963 are applicable in respect of revision petition filed in the

High Court under Section 81 of the Assam Value Added Tax Act,

2003 (hereinafter referred to as the 'VAT Act').   

3. In order to decide this question, which is a pure question of law, it

is not necessary to state the facts in greater detail.  The seminal

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facts which require reproduction are mentioned below:

The appellant  was  running a  business of  purchasing tea

and is a registered dealer under the Assam General Sales Tax

Act, 1993 as well as the VAT Act and the Central Sales Tax Act,

1956.   Based on the sales of  his  business,  the appellant  had

submitted the declaration in Form ‘C’ for the years 1998-1999,

1999-2000,  2000-2001  and  2001-2002  reflecting  the  value  of

sales.  Based  on  the  representation  made  by  the  appellant,

Respondent No. 2/Superintendent of Tax allowed full exemption

of sales tax as per Section 8(5) of Central Sales Tax Act, 1956.

But, the information given by the appellant turned out to be false

and as a result of which Respondent No. 2 passed an order dated

29.06.2004 reducing the exemption granted to the petitioner for

the year 19998-99 along with imposing penalty. Similar orders of

re-assessment were passed in respect of the other assessment

years giving rise to the connected proceedings. Aggrieved by the

order dated, 29.06.2004, the appellant preferred appeals before

Respondent No. 3/Appellate Authority along with applications for

the stay of the demand.  By order dated 29.07.2005, Respondent

No. 3 had directed the appellant to deposit 25% of the demanded

dues  within  30  days  and  stayed  rest  of  the  demand.   The

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appellant  preferred  appeals  before  the  Assam  Board  of

Revenue/Appellate Tribunal against the order dated 29.07.2005,

which was dismissed by the order dated 26.08.2008.  A review

application filed against the aforesaid order came to be dismissed

by  the  Appellate  Tribunal  by  the  order  dated  27.08.2013.

Aggrieved, appellant filed Revision Petitions under section 81(1)

of the VAT Act.   

4. Section 81 of the VAT Act also prescribes a limitation period of 60

days within which such revision petition is to be preferred to High

Court.  Since there was a delay of 335 days in filing these revision

petitions, these petitions were filed along with applications under

Section  5  of  the  Limitation  Act,  1963,  seeking  condonation  of

delay.   The  High  Court  has  dismissed  the  applications  for

condonation of delay holding that provisions of Section 5 of the

Limitation Act,  1963 are  not  applicable.   For  this  purpose,  the

High Court has referred to Section 84 of the VAT Act which makes

provisions of Sections 4 and 12 of the Limitation Act, 1963 to such

petitions.  On that basis, it is held by the High Court that since

only  Sections  4  and  12  of  the  Limitation  Act,  1963  are  made

specifically  applicable  to  these  proceedings,  by  necessary

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implication Section 5 of the Limitation Act stands excluded.

5. It was argued by Mr. Chowdhury, learned counsel appearing for

the appellant, that the approach of the High Court in dealing with

the provisions of VAT Act and applicability of Limitation Act, 1963

to such proceedings was faulty inasmuch as the High Court did

not take note of and discussed other provisions of the VAT Act

and also failed  to  give due  weightage  to  Section 29(2)  of  the

Limitation Act, 1963.   

In the first instance, he referred to Section 79 of the VAT Act

which is a provision relating to appeals to the Appellate Authority.

As per Section 79(1) of the VAT Act, appeal against the order of

the taxing authority can be filed with the appellate authority within

60  days  from the  date  of  receipt  of  such  order  of  the  taxing

authority.  Sub-section (2) of Section 79 of the VAT Act empowers

the appellate authority to entertain the appeal even beyond 60

days, provided it is presented within a further period of 180 days,

if  the  appellate  authority  is  satisfied  that  the  appellant  was

prevented by sufficient cause from presenting the appeal within

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the stipulated period of 60 days1.  

6. The learned counsel next referred to Section 80 of the VAT Act2

which  deals  with  appeals  to  the  Appellate  Tribunal  inter  alia

against the orders of the Appellate Authority.  Here also, period of

60  days  for  preferring  such  an  appeal  is  provided  under

sub-section  (3)  of  Section  80  of  the  VAT Act  and  proviso  to

sub-section (3) empowers the Appellate Tribunal to condone the

delay, if  the  appeal  is  preferred  within  a  further  period of  120

days,  on sufficient cause being shown for  not  filing the appeal

within  60  days  of  limitation  prescribed.   The  learned  counsel

contrasted  the  aforesaid  provisions  of  Sections 79 and 80  with

1 Relevant portion of Section 79 of the VAT Act reads as under:  “79. Appeals to the appellate authority: (1)  Any person aggrieved by an order passed under the Act by a taxing authority lower in rank than a Deputy Commissioner of Taxes, may appeal to the Appellate Authority, in the manner as may be prescribed, within sixty days from the date of receipt of such order.   (2)  Where the Appellate Authority is satisfied that the appellant was prevented by sufficient

cause from presenting the appeal within the aforesaid period of sixty days, it  may admit an appeal after the expiry of the said period provided it is presented within a further period of one hundred eighty days”

2    80.  Appeals to the Appellate Tribunal: (1)  Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order,-

(a)  an order passed by the Appellate Authority under Section 79, and  

(b)  an order passed by an authority not below the rank of Deputy Commissioner of Taxes.

(2)  omitted.

(3)  Every appeal under sub-section (1) shall be filed within sixty days of the date on which the order sought to be appealed against is communicated to the person;

Provided that the Appellate tribunal may admit an appeal after the expiry of sixty days if he is satisfied that the Appellant had sufficient reasons for not filing the appeal within the aforesaid time, if, it is within a further period of one hundred twenty days.   

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Section 813 of the VAT Act and pointed out that whereas there

was specific provision for condonation of delay in filing appeals

under  Sections 79 and 80 of  the VAT Act,  no such equivalent

provision was made in Section 81 of the VAT Act.  As per Section

81 of the VAT Act,  revision can be preferred to the High Court

against  the  order  of  the  Appellate  Tribunal  within  60  days.

However, there is no provision giving specific power to the High

Court to condone the delay if the revision is preferred beyond 60

days.  As per the learned counsel, the reason for not providing

such  a  provision  was  that  provisions  of  Limitation  Act,  1963

including Section 5 thereof were applicable.   

7. Insofar  as  Section  84  of  the  VAT  Act4 is  concerned,  it  was

submitted that Sections 4 and 12 of the Limitation Act, 1963 were

made applicable for specific purpose of computing the period of

limitation under  the said  Chapter  and High Court  committed a

grave error while holding that because of the aforesaid provision

only Sections 4 and 12 of the Limitation Act,  1963 were made

applicable to the VAT Act thereby excluding other provisions of 3  “81. Revision to High Court : (1) Any dealer or other person, who is dissatisfied with the decision of the Appellate Tribunal,  or the Commissioner may, within sixty days after being notified of the decision of the Appellate Tribunal, file a revision to the High Court, and the dealer or other person so appealing shall serve a copy of the notice of revision on the respondents to the proceedings.” 4  Section 84 of the VAT Act reads as under: “84.  Application of Section 4 and 12 of Limitation Act, 1963 :  In computing the period of limitation under this chapter, the provisions of Section 4 and 12 of the Limitation Act, 1963 shall, so far as may be, apply.”

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the Act.   

8. For this purpose, the learned counsel relied upon Section 29(2) of

the  Limitation  Act,  19635 which  makes provisions  contained  in

Sections 4 to 24 (inclusive) of the Limitation Act, 1963 applicable

in case of suit, appeal or application under any special or local

law, where these provisions are not expressly excluded by such

special or local law.   

9. It  was  argued  that  in  the  absence  of  any  provision  expressly

excluding the applicability of Sections 4 to 24 of the Limitation Act,

1963, those Sections were applicable qua revision petitions filed

under Section 81 of the VAT Act and, therefore, Section 5 of the

Limitation Act, 1963 was also applicable to such proceedings.  To

placate  his  aforesaid  submissions,  the  learned  counsel  relied

upon the judgment of this Court in the case of  Mangu Ram  v.

Municipal Corporation of Delhi & Anr.6.  In that case, special

leave petitions were filed against the condonation of delay to the

application for grant of special leave under Section 417, Cr.P.C.,

5  Section 29(2) of the Limitation Act, 1963 reads as under: “29(2). Where any special or local law prescribes  for  any  suit,  appeal  or  application  a  period  of  limitation  different  from  the  period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall  apply  only in so far  as,  and to the extent  to which,  they are not  expressly excluded by such special or local law.” 6 (1976) 1 SCC 392

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1898 against acquittal of the petitioners by the trial court, in spite

of the mandatory period of limitation provided in sub-section (4) of

Section 417.  Question arose whether in the case of Kaushalya

Rani  v.  Gopal Singh7, which held Section 417, Cr.P.C., 1898 a

special  law  and  excluded  application  of  Section  5  on  a

construction of  Section 29(2)(b)  of  the old Act  of  1908 applied

under the corresponding provision of Limitation Act, 1963 which

governed  the  case.  The  Court  held  that  since  the  case  was

governed by Limitation Act, 1963, judgment in  Kaushalya Rani

case did not apply.  For applicability of the Limitation Act, 1963 to

such  proceedings,  the  Court  referred  to  Section  29(2)  of  the

Limitation Act, 1963 holding that there is an important departure

made  by  the  Limitation  Act,  1963  insofar  as  the  provision

contained in Section 29, sub-section (2), is concerned.  Under the

Indian  Limitation  Act,  1908,  clause  (b)  to  sub-section  (2)  of

Section  29  provided  that  for  the  purpose  of  determining  any

period of limitation prescribed for any suit, appeal or application

by any special or local law the application of Section 5 was in

clear and specific terms excluded.  But under Section 29(2) of

Act, the provisions of Section 5 shall apply in case of special or

7 (1964) 4 SCR 982

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local law to the extent to which they are not expressly excluded

by such special or local law.  Since under the Limitation Act, 1963,

Section 5 is specifically made applicable by Section 29 (2), it is

only if the special or local law expressly excludes the applicability

of Section 5 that it would stand displaced.  The Court held that

there is nothing in Section 417(4),  Cr.P.C.,  which excludes the

application of Section 5 of Limitation Act, 1963.   

10. Learned counsel for  the appellant  also referred to the case of

State of Madhya Pradesh & Anr. v. Anshuman Shukla8.  In that

case, question of applicability of Section 5 of the Limitation Act

arose in relation to revision petition that can be preferred under

Section 19 of the M.P. Madhyastham Adhikaran Adhiniyam, 1983

(as it stood prior to its amendment in 2005).  The Court held that

since unamended Section 19 did not contain any express rider on

power of the High Court to entertain applications for revision after

expiry of prescribed limitation thereunder, provisions of Limitation

Act, 1963 would become applicable vide Section 29(2) thereof.  It

further held that as the High Court was conferred with suo moto

power under Section 19 of Adhiniyam, 1983 to call for record of

an award at any time, there was no legislative intent to exclude

8 (2014) 10 SCC 814

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the applicability of Section 5 of the Limitation Act, 1963.

11. Mr.  Nalin  Kohli,  learned  senior  counsel  appearing  for  the

respondents,  on the other hand, submitted that  the High Court

had exhaustively dealt with the issue and rightly found that since

Section 84 of the VAT Act confined the applicability of Limitation

Act  only  in  respect  of  Sections  4  and  12  thereof  to  the

proceedings under the said Chapter, by necessary implication the

other provisions of the Limitation Act,  1963 including Section 5

thereof  stood excluded.   He submitted that  for  the purpose of

finding whether other provisions are excluded or not,  the focus

should  be  on  the  scheme of  the  special  law  as  laid  down in

Hukumdev Narain Yadav v. Lalit Narain Mishra9 wherein it was

held that even if there exists no express exclusion in the special

law, the Court has right to examine the provisions of the special

law to arrive at a conclusion as to whether the legislative intent

was to exclude the operation of the Limitation Act.  According to

him, Section 84 of the VAT Act clearly depicted such a legislative

intent.   

12. After examining the matter in the light of law laid down in various

9 (1974) 2 SCC 133

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judgments cited by both the parties, we are of the view that the

High Court has given correct interpretation to the provisions of

Section 81 of the VAT Act, when this provision is read along with

Section 84 thereof.   

13. In the case of  Commissioner of Customs and Central Excise

v. Hongo India Private Limited & Anr.10, the question that fell for

determination was that as to whether the High Court had power to

condone the delay in  presentation of  the reference application

under  unamended  Section  35-H(1)  of  the  Central  Excise  Act,

1994 beyond the period prescribed by applying Section 5 of the

Limitation Act.   Unamended Section  35-H dealt  with  reference

application to the High Court.  Under sub-section (1) thereof, such

reference application could be preferred within a period of  180

days of the date upon which the aggrieved party is served with

notice of an order under Section 35-C of the Central Excise Act.

There was no provision to extend the period of limitation for filing

the application to the High Court beyond the said period and to

condone the delay.  Pertinently, under the scheme of the Central

Excise Act as well, in case of appeal to the Commissioner under

Section 35 of the Act, which should be filed within 60 days, there

10 (2009) 5 SCC 791

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was a specific provision for condonation of delay upto 30 days if

sufficient  cause  is  shown.   Likewise,  appeal  to  the  Appellate

Tribunal could be filed within 90 days under Section 35-B thereof

and sub-section (5) of Section 35-B gave power to the Appellate

Tribunal to condone the delay irrespective of the number of days,

if sufficient cause is shown.  Further, Section 35-EE provided 90

days  time  for  filing  revision  by  the  Central  Government  and

proviso thereto empowers the revisional authority to condone the

delay for a further period of 90 days.  However, when it came to

making reference to the High Court under Section 35-G of the

Act, the provision only prescribed the limitation period of 180 days

with no further clause empowering the High Court to condone the

delay beyond the said period of 180 days.  It was, thus, in almost

similar circumstances, the judgment was rendered by this Court.

The categorical opinion of the Court was that in the absence of

any such power, the High Court did not have power to condone

the delay.  In that case also, provisions of Section 29(2) of the

Limitation Act, 1963 were pressed into service.  But this argument

was rejected in the following manner:

30.  In  the  earlier  part  of  our  order,  we  have adverted  to  Chapter  VI-A  of  the  Act  which provides  for  appeals  and  revisions  to  various authorities.  Though  Parliament  has  specifically

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provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about  the  number  of  days  if  there  is  sufficient cause in the case of an appeal to the Appellate Tribunal. Also an additional period of 90 days in the case of revision by the Central Government has been provided. However, in the case of an appeal to the High Court under Section 35-G and reference  application  to  the  High  Court  under Section 35-H, Parliament has provided only 180 days and no further period for  filing an appeal and  making  reference  to  the  High  Court  is mentioned in the Act.

31. In this regard, it is useful to refer to a recent decision  of  this  Court  in  Punjab  Fibres  Ltd. [(2008)  3  SCC  73]  The  Commissioner  of Customs,  Central  Excise,  Noida  was  the appellant in this case. While considering the very same question, namely, whether the High Court has power to condone the delay in presentation of  the  reference  under  Section  35-H(1)  of  the Act, the two-Judge Bench taking note of the said provision  and  the  other  related  provisions following  Singh  Enterprises  v.  CCE  [(2008)  3 SCC  70]  concluded  that:  (Punjab  Fibres  Ltd. case [(2008) 3 SCC 73] , SCC p. 75, para 8)

“8.  …  the  High  Court  was  justified  in holding  that  there  was  no  power  for condonation  of  delay  in  filing  reference application.”

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 appeal and reference to the High Court should be made within 180 days only  from  the  date  of  communication  of  the decision or order. In other words, the language used in other provisions makes the position clear that  the  legislature  intended  the  appellate authority  to  entertain  the  appeal  by  condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring  an  appeal.  In  the  absence  of  any

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clause condoning the 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 was no power to condone the delay after expiry of the prescribed period of 180 days.

33.  Even otherwise,  for  filing an appeal  to the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature  has  provided 60  days  and 90  days respectively,  on  the  other  hand,  for  filing  an appeal  and reference to  the  High  Court  larger period  of  180 days  has  been provided with  to enable the Commissioner and the other party to avail  the  same.  We  are  of  the  view  that  the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision.”

14. In the process, the Court also explained the expression 'expressly

excluded' appearing in Section 29(2) of the Limitation Act, 1963 in

the following manner:

“34.  Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted, what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to the High Court.

35.  It  was contended before us that the words “expressly excluded” would mean that there must be an express reference made in the special or local  law  to  the  specific  provisions  of  the Limitation  Act  of  which  the  operation  is  to  be excluded.  In  this  regard,  we  have  to  see  the scheme of the special law which here in this case

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is  the  Central  Excise  Act.  The  nature  of  the remedy  provided  therein  is  such  that  the legislature intended it to be a complete code by itself  which  alone  should  govern  the  several matters provided by it. If,  on an examination of the  relevant  provisions,  it  is  clear  that  the provisions  of  the Limitation  Act  are  necessarily excluded,  then  the  benefits  conferred  therein cannot  be  called  in  aid  to  supplement  the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless  be  open  to  the  court  to  examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme  of  the  special  law  exclude  their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of  the Central  Excise Act relating  to  filing  of  reference application  to  the High Court.”

The  aforesaid  judgment  is  a  complete  answer  to  the

arguments of the appellant.

15. It  may be  relevant  to  mention here  that  after  the judgment  in

Hongo India Private Limited & Anr., Section 35-H of the Central

Excise Act, 1994 was amended by the Parliament by Act 32 of

2003 with effect from 14.05.2003 giving power to the High Court

to  condone  the  delay  by  inserting  sub-section  (2A).   It  is,

therefore, for the legislature to set right the deficiency, if it intends

to give power to the High Court  to condone the delay in filing

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revision petition under Section 81 of the VAT Act.   

16. Argument  predicated  on  'no  express  exclusion'  loses  its  force

having  regard  to  the  principle  of  law enshrined  in  Hukumdev

Narain Yadav.  Therein, the Court made following observations

while examining whether the Limitation Act would be applicable to

the provisions of the Representation of the People Act or not:

“17.  … but  what  we have  to  see  is  whether  the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are  such  that  the  legislature  intended  it  to  be  a complete code by itself which alone should govern the  several  matters  provided  by  it.  If  on  an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether  and  to  what  extent  the  nature  of  those provisions or the nature of the subject-matter and scheme of the special law exclude their operation.”

17. Thus, the approach which is to be adopted by the Court in such

cases is to examine the provisions of special law to arrive at a

conclusion as to whether there was legislative intent to exclude

the operation of Limitation Act.  In the instant case, we find that

Section 84 of the VAT Act made only Sections 4 and 12 of the

Limitation Act applicable to the proceedings under the VAT Act.

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The apparent legislative intent, which can be clearly evinced, is to

exclude other provisions, including Section 5 of the Limitation Act.

Section  29(2)  stipulates  that  in  the  absence  of  any  express

provision in a special law, provisions of Sections 4 to 24 of the

Limitation Act would apply.  If the intention of the legislature was

to  make  Section  5,  or  for  that  matter,  other  provisions  of  the

Limitation Act applicable to the proceedings under the VAT Act,

there was no necessity to make specific provision like Section 84

thereby  making  only  Sections  4  and  12  of  the  Limitation  Act

applicable to such proceedings, inasmuch as these two Sections

would also have become applicable by virtue of Section 29(2) of

the Limitation Act.  It is, thus, clear that the Legislature intended

only Sections 4 and 12 of the Limitation Act, out of Sections 4 to

24 of the said Act, applicable under the VAT Act thereby excluding

the applicability of the other provisions.   

18. Judgment in the case of Mangu Ram would not come to the aid

of the appellant as the Court found that there was no provision

under the Cr.P.C. from which legislative intent to exclude Section

5 of the Limitation Act could be discerned and, therefore, Section

29(2)  of  the Limitation Act  was taken aid of.   Similar  situation

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Page 18

prevailed in  Anshuman Shukla's  case.  On the contrary, in the

instant case, a scrutiny of the scheme of VAT Act goes to show

that it is a complete code not only laying down the forum but also

prescribing  the  time  limit  within  which  each  forum  would  be

competent  to  entertain  the  appeal  or  revision.  The  underlying

object of the Act appears to be not only to shorten the length of

the proceedings initiated under the different provisions contained

therein,  but  also  to  ensure  finality  of  the  decision  made there

under. The fact that the period of limitation described therein has

been equally  made applicable  to  the assessee as well  as  the

revenue  lends  ample  credence  to  such  a  conclusion.   We,

therefore, unhesitantly hold that the application of Section 5 of the

Limitation Act, 1963 to a proceeding under Section 81(1) of the

VAT Act stands excluded by necessary implication, by virtue of

the language employed in section 84.   

19. The High Court has rightly pointed out the well settled principle of

law that “the court cannot interpret the statute the way they have

developed  the  common  law  ‘which  in  a  constitutional  sense

means judicially developed equity'. In abrogating or modifying a

rule of the common law the court exercises the same power of

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Page 19

creation that built up the common law through its existence by the

judges  of  the  past.  The  court  can  exercise  no  such  power  in

respect  of  statue,  therefore,  in  the  task  of  interpreting  and

applying a statue, Judges have to be conscious that in the end

the statue is the master not the servant of the judgment and no

judge has a choice between implementing it and disobeying it.”

What, therefore, follows is that the court cannot interpret the law

in such a manner so as to read into the Act an inherent power of

condoning the delay by invoking Section 5 of the Limitation Act,

1963 so as to supplement the provisions of the VAT Act which

excludes the operation of Section 5 by necessary implications.    

20. We, thus, do not find any infirmity in the judgment rendered by

the High Court.  The present appeals are devoid of any merit and

are, accordingly, dismissed.   

.............................................J. (A.K. SIKRI)

.............................................J. (ABHAY MANOHAR SAPRE)

NEW DELHI; JANUARY 04, 2017.

Civil Appeal Nos. 49-50 of 2017 Page 19 of 19 (arising out of SLP (Civil) Nos.21865-21872 of 2016)