Additional Commissioner of Sales Tax Vat-III vs Jonson and Jonson Ltd. and Others

These two motions by the Revenue seek condonation of delay in filing the sales tax application and the request is that the application seeking reference of certain questions of law to this court by invoking this court''s powers under section 61(2) of the Bombay Sales Tax Act, 1959 be taken on file. In the first case, the assessee is M/s. Jonson and Jonson Ltd. and the contention of the Joint Commissioner of Sales Tax is that there are certain questions of law which arise out of the order passed by the Maharashtra Sales Tax Tribunal at Mumbai on September 10, 2012 in Reference Application Nos. 70 and 71 of 2011 in Second Appeal Nos. 862 of 2005 and 863 of 2005. However, the Commissioner was advised to file Sales Tax Reference No. 26 of 2013 directly before this court. That was not a proper remedy. Therefore, with the leave of this court, the said sales tax reference was allowed to be withdrawn with liberty to adopt appropriate proceedings, according to the deponent of the affidavit in support of this motion. It is in these circumstances and when the correct remedy was to invoke this court''s jurisdiction under section 61(2) of the Act that the application was filed. However, noticing that there was a delay of 90 days in filing the same that the instant application/notice of motion with the above request has been filed.

When these notices of motion were placed before us a preliminary objection was raised with regard to their maintainability. The objection is that this court had already taken a view in the judgment delivered in Commissioner of Sales Tax, Maharashtra State, Mumbai v. N.H. Polymers. This judgment has now been reported in Commissioner of Sales Tax, Maharashtra State Vs. N.H. Polymers, .

In view of this judgment this court has no power to condone the delay in filing of these applications. The applications/notices of motion be therefore dismissed on this ground alone.

Mr. V.A. Sonpal, appearing on behalf of the Revenue submitted that he is aware of the judgment delivered by this court. However, the endeavour of the Revenue is to point out that this judgment cannot be said to be laying down the correct law. Mr. Sonpal has handed over to us a compilation containing the judgments and particularly in the case of Vasanji Ghela and Co. Vs. The State of Maharashtra and Another, . He has also brought to our notice, the order passed by the honourable Supreme Court in the case of Commissioner of Sales Tax, Maharashtra v. N.H. Polymers, Solapur in petition(s) for Special Leave to Appeal (Civil) CC No. 6050 of 2009. It is submitted that the honourable Supreme Court had dismissed the Revenue''s appeal challenging the judgment of this court in the case of Commissioner of Sales Tax, Maharashtra State Vs. N.H. Polymers, on the ground of delay. It is therefore, open for us to take a different view. Mr. Sonpal also brought to our notice a judgment of this court and delivered by a Division Bench in the case of Mehta Construction Company Vs. State of Maharashtra and another, . Lastly, reliance is placed upon a judgment of the honourable Supreme Court delivered recently in the case of Dashrath Rupsingh Rathod Vs. State of Maharashtra, that is to essentially urge that the rule of precedents or judicial discipline is not absolute leave alone rigid. This court, therefore, can find out and if the judgment of a Coordinate Bench is in its opinion not laying down the correct law then, this court would not be precluded from considering whether the judgment requires a re-look and by a Larger Bench. The endeavour of Mr. Sonpal is therefore to convince us that the matter is required to be referred to a Larger Bench.

He has also submitted that there is an error in the judgment of the Division Bench in Commissioner of Sales Tax, Maharashtra State Vs. N.H. Polymers, inasmuch as the word "only" has not been used in section 59 of the Bombay Sales Tax Act, 1959. Once that is the position then, by virtue of sub-section (2) of section 29 of the Limitation Act, 1963 applicability of sections 4 to 24 thereof is not ruled out. Rather these provisions are not expressly excluded and in view thereof section 5 of the Limitation Act, 1963 would squarely apply. Mr. Sonpal submits that the jurisdiction of this court under section 61 is special and exceptional. In the event this court finds there are questions of law and which require answer and opinion by this court, then, it should not be prevented to consider them merely because an application in that regard has not been made in time. If important questions of law require answers then, this court should not hesitate to answer them.

For all these reasons it is submitted that either the motion be allowed or if this court is of the view that the judgment in Commissioner of Sales Tax, Maharashtra State Vs. N.H. Polymers, requires reconsideration then, that ought to be held unhesitatingly, so that a Larger Bench looks at the issue afresh.

On the other hand, Ms. Badheka and Mr. Joshi appearing on behalf of the assessees in the first and second motion submit that none of the contentions of the Revenue should detain us. The Revenue is attempting to overcome the binding judgment of this court. That attempt should be entirely discouraged. Judicial discipline requires that this court should apply and follow the judgment of the co-ordinate Bench of the same court because it is binding. Its binding effect is not diluted merely because another argument has been canvassed or the court''s attention is being invited to some other section or provision particularly in the Limitation Act, 1963. In these circumstances, both argue that these motions be dismissed.

With the assistance of the counsel appearing for both sides, we have perused notices of motion, the affidavits-in-support and reply, the statutory provisions and the decisions brought to our notice.

At the relevant time, the Bombay Sales Tax Act, 1959 had a provision which enabled the forwarding of a statement of case to this court. That is to seek an opinion or answer on any question of law arising out of the order and passed by the authorities named in section 61. Section 61 of the Act reads as under:

"61. Statement of case to the High Court.--(1) Within ninety days from the date of the communication of the order of the Tribunal, passed in appeal being an order which affects the liability of any person to pay tax or penalty or interest or to forfeiture or any sum or which affects the recovery from any person of any amount under section 39, that person, the Additional Commissioner of Sales Tax having jurisdiction over the whole of the State or the Commissioner, may by application in writing (accompanied, where the application is made by that person, by a fee of one hundred rupees) require the Tribunal to refer to the High Court any question of law arising out of such order; and where the Tribunal agrees, the Tribunal shall, as soon as may be after the receipt of such application, draw up a statement of the case and refer it to the High Court:

Provided that, if in the exercise of its power under this sub-section the Tribunal refuses to state the case which it has been required to do, on the ground that no question of law arises, that person, the Additional Commissioner of Sales Tax having jurisdiction over the whole of the State, or as the case may be, the Commissioner, may, within ninety days of such refusal, either withdraw his application (and if he does so any fee paid shall be refunded), or apply to the High Court against such refusal:

Provided further that, the Tribunal may refuse to refer the case to the High Court, if the person or, as the case may be, the Commissioner fails to submit the paper book and other documents required by the Tribunal, within a period of three months from the date of the order of the Tribunal served on that person or, as the case may be, the Commissioner.

(2) If upon receipt of an application under sub-section (1), the High Court is not satisfied as to the correctness of the decision of the Tribunal, it may require the Tribunal to state the case and refer it; and accordingly, on receipt of any such requisition the Tribunal shall state the case and refer it to the High Court.

(3) If the High Court is not satisfied that the statement in the case referred under this section are sufficient to enable it to determine the question raised thereby, it may refer the case back to the Tribunal to make such additions thereto or alterations therein, as the High Court may direct in this behalf.

(4) The High Court, upon the hearing of any such case, shall decide the question of law raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded, and shall send to the Tribunal a copy of such judgment under the seal of the court and the signature of the Registrar, and the Tribunal shall dispose of the case accordingly.

Explanation.--For the purpose of this sub-section, certified copy of the judgment of the High Court, submitted by the Commissioner to the Tribunal, shall be deemed to be the copy of the judgment of the High Court delivered to the Tribunal under the seal of the court and the signature of the Registrar.

(5) Where a reference is made to the High Court under this section, the costs including the disposal of the fee referred to in sub-section (1), shall be in the discretion of the court.

(6) The payment of the amount of the tax, penalty, interest or sum forfeited if any, due in accordance with the order of the Tribunal in respect of which an application has been made under sub-section (1) shall not be stayed pending the disposal of such application or any reference made in consequence thereof; but if such amount is reduced as the result of such reference, the excess tax, penalty, interest or sum forfeited, paid shall be refunded in accordance with the provisions of section 43."

A bare perusal thereof would indicate that the application to forward a question or referring it for opinion and answer by this court in the first instance can be made by a written application to the Tribunal. If the Tribunal agrees with the applicant then, it shall draw up this statement of case and refer it to the High Court. However, that power of the Tribunal can be invoked within 90 days from the date of communication of the order passed by the Tribunal in appeal and which affects the liability of any person to pay tax or penalty or interest or to forfeiture of any sum or which affects the recovery from any person of any amount under section 39 of the Bombay Sales Tax Act, 1959. That person can invoke the jurisdiction of the Tribunal or equally the Additional Commissioner of Sales Tax having jurisdiction over the whole State or the Commissioner of Sales Tax can as well approach the Tribunal in terms of the first part of section 61 of the Bombay Sales Tax Act, 1959.

The second part of section 61 and with which we are really concerned is the first proviso to section 61(1) of the Bombay Sales Tax Act, 1959. In that proviso it is provided that if the Tribunal in exercise of its powers under sub-section (1) refuses to state the case which it has been required to do, on the ground that no question of law arises, the person who has invoked the Tribunal''s jurisdiction under section 61 may within 90 days of such refusal, either withdraw his application or apply to the High Court against such refusal. Thereafter, there are further sub-sections and which enable this court to exercise its jurisdiction and answer the question or decide it in terms of the other sub-sections.

The argument before us is that though sub-section (1) of section 61 in its first part contains a stipulation that the person can approach the Tribunal within 90 days from the date of the communication and seek the Tribunal''s assistance in forwarding for opinion, a question of law, arising out of the appellate order passed by it, but that will not mandate invocation of this court''s jurisdiction or powers within 90 days from the refusal by the Tribunal. The argument really is that within 90 days of refusal by the Tribunal, the applicant or the person can either withdraw his application or apply to the High Court against that refusal. That can very well be done after 90 days. If that is done after 90 days this court is not precluded or prevented from condoning the delay and by taking recourse to section 5 of the Limitation Act, 1963.

Precisely, such a contention was raised in the case of Commissioner of Sales Tax, Maharashtra State Vs. N.H. Polymers, . The Division Bench of this court was approached by the Commissioner of Sales Tax, Maharashtra State. The proceedings arose out of a question determined by the Commissioner of Sales Tax by his order dated January 31, 1998. He held that the items are covered by Schedule C, Part II, entry 152, the residual entry liable to sales tax at 13 per cent. N.H. Polymers, the assessee in that case preferred an appeal being Appeal No. 36 of 1998 before the Maharashtra Sales Tax Tribunal, Mumbai. By an order dated August 31, 2002, the Tribunal allowed the appeal and held that the items enumerated in para No. 3 of the application are covered under Schedule C, Part I, entry and thus liable to sales tax at four per cent. The Commissioner of Sales Tax, Maharashtra State, Mumbai applied by Reference Application No. 122 of 2002 to the Tribunal and requested to frame questions of law and refer them to this court. By order passed on June 15, 2005, the Tribunal rejected the Reference Application No. 122 of 2002. Aggrieved by this order of the Tribunal, the Commissioner of Sales Tax, Maharashtra State approached this court by filing an application, namely, a notice of motion seeking condonation of delay together with the reference application because in his submission the sales tax application was filed beyond period of 90 days as required by the first proviso to Sub-section (1) of section 61 of the Bombay Sales Tax Act, 1959. Similar preliminary objection was raised by the assessee, N.H. Polymers, before this court.

It is not possible for us to agree with Mr. Sonpal that the period of 90 days provided in the proviso for approaching this court against the refusal of the Tribunal to refer any question of law is not a rule or provision of limitation. In Commissioner of Sales Tax, Maharashtra State Vs. N.H. Polymers, , both sides proceeded on the agreed basis that 90 days is a period provided for both sub-section (1) substantively and the proviso. This period or stipulation of time or provision of limitation binds the parties. The question was whether if the application filed under the proviso to section 61(1) is filed beyond 90 days, can this court take recourse to section 5 of the Limitation Act, 1963.

It is in dealing with that limited controversy that this court referred to the rival contentions and then in para 9 answered the same. Para 9 of this judgment reads as under:

"9. On behalf of the respondents, it is submitted that the Act has been repealed with effect from April 1, 2005 on introduction of Value Added Tax Act, 2002. The Act, it is submitted, is a special law providing for a period of limitation different from the period prescribed under the Limitation Act, 1963 and, therefore considering section 29(2) of the Limitation Act, only those provisions would be applicable which are specifically made applicable. Since the special law prescribes the period of limitation, the Sales Tax Act would be governed by the specific provisions of the Act of 1959. Section 5 of the Limitation Act would not be applicable, considering the provisions of sections 59 and 60 of the Act of 1959, which exclude expressly or by necessary implication, the application of the provisions of the Limitation Act except sections 4 and 12. Section 59 of the Act provides that in computing the period of limitation, only the provisions of sections 4 and 12 of the Limitation Act in so far as they relate to proceedings under the provisions of sections 55, 57 and 61 will apply. A literal reading of section 59 can only lead to the conclusion, that all proceedings under section 61, including under sub-section (1) or under its proviso, only the provisions of sections 4 and 12 of the Limitation Act would apply. Therefore, in such proceedings, the application of section 5 of the Limitation Act is expressly excluded. Section 60 of the Act of 1959 confers power for extension of period of limitation only on an appellate authority while admitting an appeal under section 55. Considering the language of section 60 and the object behind enacting it, an inference can be drawn that section 60 was enacted to exclude the application of section 5 of the Limitation Act. By necessary implication, therefore, it will also impliedly exclude the application of section 5 of the Limitation Act to an application for reference under the Act submitted either to the Tribunal or the court under the proviso to section 61 . Considering the specific provisions of the special law, the ratio of the Supreme Court judgments in the case of Union of India Vs. M/s Popular Construction Co., and the decision in the case of The Commissioner of Sales Tax, U.P., Lucknow Vs. Parson Tools and Plants, Kanpur, is squarely applicable."

The Division Bench held that in computing the period laid down in sections 55, 57 and 61, the provisions of sections 4 and 12 of the Limitation Act, 1963 shall, so far as may be applied. Therefore, though section 5 of the Limitation Act, 1963 has not been expressly excluded, yet in computing the period under section 61 only sections 4 and 12 of the Limitation Act as far as applicable be applied. Considering the language of section 29(2) of the Limitation Act, only sections 4 and 12 being made expressly applicable, the inference is that other provisions of the Limitation Act are excluded. It is this understanding of the legal provisions by the Division Bench which has been assailed before us by Mr. Sonpal.

For appreciating this contention we may have to refer to the provisions regarding appeals and revision as set out in the Bombay Sales Tax Act, 1959. For that purpose, we may have to start with section 54. That bars certain proceedings. Section 54 reads as under:

"54. Bar to certain proceedings.--Save as is provided by section 61, no assessment made and no order passed under this Act or the rules made thereunder by the Commissioner or any officer or person subordinate to him shall be called in question, in any court, and save as is provided by section 55, no appeal shall lie against any such assessment or order."

The language of this provision is imperative and mandatory. Save as is provided by section 61, no assessment made and no order passed under the Bombay Sales Tax Act, 1959 or the Rules made thereunder by the Commissioner or any officer or person subordinate to him shall be called in question, in any court and save as is provided by section 55, no appeal shall lie against any such assessment order.

Then comes section 55 and which reads as under:

"55. Appeals.--(1) An appeal, from every original order, not being an order mentioned in section 56 passed under this Act or the rules made thereunder, shall lie,--

(a) if the order is made by a Sales Tax Officer, or any other officer subordinate thereto, to the Assistant Commissioner;

(b) if the order is made by a Senior Assistant Commissioner or an Assistant Commissioner to the Deputy Commissioner;

(c) if the order is made by a Deputy Commissioner, Additional Commissioner, or Commissioner, or to the Tribunal.

(2) In the case of an order passed in appeal by an Assistant Commissioner, or by a Deputy Commissioner, a second appeal shall lie, at the option of the appellant, either to the Commissioner or to the Tribunal.

(3) Every order passed in appeal under this section, shall, subject to the provisions of sections 57, 61 and 62, be final.

(4) Subject to the provisions of section 60, no appeal shall be entertained unless it is filed within sixty days from the date of the communication of the order appealed against.

(5) The appellate authority or the Tribunal, as the case may be, may, while admitting the appeal, pending the disposal of the appeal, stay the order appealed against, subject to such conditions or restrictions as may be deemed necessary including a direction for depositing of a part or whole of the disputed amount by the appellant.

(6) All second appeals and applications filed before the coming into force of section 14 of the Maharashtra Tax Laws (Levy and Amendment) Act, 2001 (Mah. 22 of 2001), in so far as the said appeals are filed against any order passed in first appeal directing payment to be made of any sum with or without security for admission of the first appeal, shall abate:

Provided that, such abating of the second appeal shall not affect the stay order, if any, granted by the appellate authority or the Tribunal against the original order, against which first appeal has been filed and is pending.

(7) Subject to such rules of procedure as may be prescribed, every appellate authority (both in the first appeal and the second appeal) shall have the following powers:

(a) in an appeal against an order of assessment, it may confirm, reduce, enhance or annul the assessment; or it may set aside the assessment and refer the case back to the assessing authority for making a fresh assessment in accordance with the direction given by it and after making such further inquiry as may be necessary; and the assessing authority shall thereupon proceed to make such fresh assessment and determine, where necessary, the amount of tax payable on the basis of such fresh assessment;

(b) in an appeal against an order imposing a penalty, or interest the appellate authority may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty or interest;

(c) in any other case, the appellate authority may pass such orders in the appeal as it deems just and proper:

Provided that, the appellate authority shall not enhance an assessment or a penalty or interest, or reduce the amount of drawback, set-off or refund of the tax, unless the appellant has had a reasonable opportunity of showing cause against such enhancement or reduction."

That provides for appeals from every original order not being an order mentioned in section 56 and passed under the Bombay Sales Tax Act or the Rules made thereunder. The appellate authorities are enumerated and by sub-section (3) every order passed in appeal under section 55 shall subject to provisions of sections 57, 61 and 62 is made final.

Then comes sub-section (4) which provides for limitation of 60 days for entertaining an appeal. However, by sub-section (5) which was substituted by Maharashtra Act 22 of 2001, the appellate authority or the Tribunal as the case may be while admitting the appeal stay the order passed against and thereafter the further provisions enumerate the powers of the appellate authority.

In section 56 of the Bombay Sales Tax Act, 1959 we find a stipulation of non-appealable orders. That sets out that even no application for revision shall lie against certain orders.

Then comes section 57 which confers the power of revision and is subject to section 56 and to any rules which may be made in that behalf. There is also an outer-limit for exercise of revisional powers and what is material for our purpose is not section 58 but sections 59 and 60. These sections read as under:

"58. Court fee on appeal and certain other applications.--Notwithstanding anything contained in the Bombay Court-fees Act, 1959 (Bom. XXXVI of 1959), an appeal preferred under section 55 shall bear a court-fee stamp of such value not exceeding one thousand rupees, as may be prescribed, and any other application, not otherwise provided for by this Act when presented to a prescribed authority for a prescribed purpose or when presented to the Tribunal shall bear a court-fee stamp of such value not exceeding one hundred rupees, as may be prescribed.

Application of sections 4 and 12 of Limitation Act.--In computing the period laid down under sections 55, 57 and 61 the provisions of sections 4 and 12 of the Limitation Act, 1963, shall, so far as may be, apply.

Extension of period of limitation in certain cases.--An appellate authority may admit any appeal under section 55 after the period of limitation laid down in the said section, if the appellant satisfies the appellate authority that he had sufficient cause for not preferring the appeal within such period.

Explanation.--For the purposes of this section, when an appeal is preferred under section 55 after the said period of limitation laid down in that section, the ground that the appellant came to know of any judgment, decision or order of any court, Tribunal or other authority after the expiry of the period of limitation aforesaid (whether such judgment, decision or order was delivered or made before or after the expiry of that period), shall not be deemed to constitute a sufficient cause."

In section 59, what has been stated is that the application of the Limitation Act, 1963 is limited and in computing the period laid down under sections 55, 57 and 61 the provisions of sections 4 and 12 of the Limitation Act, 1963 shall so far as may be applied. Section 60 enables the appellate authority to admit any appeal under section 55 after the period of limitation laid down in the said section, if the appellant satisfies the appellate authority, that he had sufficient cause for not preferring the appeal within such period. Then, the Explanation below that explains as to what could not be termed as a sufficient cause.

It is thereafter section 61 appears in the statute book. A reading of sections 59 and 60 of the Bombay Sales Tax Act, 1959 together enabled the Division Bench in Commissioner of Sales Tax, Maharashtra State Vs. N.H. Polymers, to come to a conclusion that the Legislature did not intend to confer any power in this court to condone the delay by taking recourse to section 5 of the Limitation Act, 1963. In other words both Tribunal and this court have to abide by the limit of 90 days and if the application is filed beyond that period the court has no powers to condone the delay by taking recourse to section 5 of the Limitation Act, 1963.

As recently as in August, 2014 a three Judge Bench of the honourable Supreme Court had an occasion to consider the applicability of section 5 of the Limitation Act, 1963 to the revision application which was filed before the Madhya Pradesh High Court under the Madhya Pradesh Madhyastham Adhikaran Adhiniyam (29 of 1983). The judgment of the honourable Supreme Court in State of M.P. Vs. Anshuman Shukla, , there the question arose as to whether two judge Bench decision of the honourable Supreme Court was correct in laying down the law that the revisional powers cannot be exercised beyond the statutory limit or the limitation prescribed by law. In other words, the delay in filing a revision petition invoking section 19 of this Act cannot be condoned after the period specified therein and by taking recourse to section 5 of the Limitation Act, 1963. The observations, conclusions and findings of the honourable Supreme Court are instructive. In para 19 of this judgment the Supreme Court framed question No. 1 and in answering the same referred to not only the Madhya Pradesh Act but the Limitation Act, 1963 and held that it is a general legislation on the law of limitation. It expressly referred to sections 5 and 29 thereof in paras 25 and 26. Thereafter, the judgments brought to its notice by parties have been referred in paras 27, 28 and 29. Some of the judgments that the honourable Supreme Court referred are also cited in the Division Bench order in Commissioner of Sales Tax, Maharashtra State Vs. N.H. Polymers, . Upon referring to these judgments of the honourable Supreme Court the Division Bench of this court in Commissioner of Sales Tax, Maharashtra State Vs. N.H. Polymers, held as under (pages 85 and 86 in 13 VST):

"27. The court observed that the three stark features of the scheme and language of the above provision unmistakably show that the Legislature has deliberately excluded the application of the principles underlying sections 5 and 14 of the Limitation Act, except to the extent and in the truncated form embodied in sub-section (3B) of section 10 of the Sales Tax Act. The court then proceeded to observe as under:

''Delay in disposal of revenue matters adversely affects the steady inflow of revenues and the financial stability of the State. Section 10 is therefore designed to ensure speedy and final determination of fiscal matters within a reasonably certain time schedule.''

The Bench then enunciated thus:

''Thus the principle that emerges is that if the Legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only up to a specified time-limit and no further, then the Tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time-limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of section 14(2) of the Limitation Act.''

On a conspectus of the decisions earlier referred to and their ratio, it would be clear that the authorities constituted under the Sales Tax Act for deciding the tax dues are not courts, but Tribunals and unless there is an express power conferred by the Act to condone delay or exclude any period of limitation, the Tribunal would not be clothed with the power to condone the delay. In so far as the power of the Tribunal referring the matter to the High Court beyond the period prescribed by section 61 is concerned, it has been held that there is no power in the Tribunal to extend that period and consequently, as there is no power in the Tribunal, there is also no power in the High Court to condone the delay, which the Tribunal itself could not have condoned."

Therefore, it may be as Mr. Sonpal contented there should be an express exclusion of section 5 of the Limitation Act, 1963, so as to disable the court from condoning the delay in filing any application. He urges that there is no such express exclusion. The Division Bench erroneously read the word "only" in section 59 of the Bombay Sales Tax Act, 1959. However, as the honourable Supreme Court has clarified it is not just the aspect of express exclusion but the nature of the proceedings which are relevant. The honourable Supreme Court has therefore, examined the matter and with the reference to all the previous judgments. In the event, an application lies to a court then, the nature of the enquiry should be as held by the honourable Supreme Court. In the earlier paragraphs which we have reproduced above, the Division Bench of this court has referred to other decisions and rendered by the honourable Supreme Court in The Commissioner of Sales Tax, U.P., Lucknow Vs. Parson Tools and Plants, Kanpur, and Smt. Ujjam Bai Vs. State of Uttar Pradesh, . Eventually the legislative intent to expressly exclude the applicability of section 5 of the Limitation Act, 1963, which is relevant. In the present case, the conclusion of the Division Bench is based on a conjoint reading of the above referred provisions of the Bombay Sales Act, 1959. The conjoint reading reveals the legislative intent. It is not that the party or person approaching the same Tribunal, which has rendered the appellate decision or order and seeking its intervention to refer any question of law for opinion and answer of this court, is decisive leave alone conclusive. The Tribunal as the provision itself indicates has to agree, that its appellate order raises a question of law and which requires it to refer it to the High Court. Then alone the Tribunal can draw the statement of case and refer the question to the High Court. A party or a person has not been conferred with an absolute right and to seek a reference. Equally, upon the refusal of the Tribunal to state a case and on the ground that no question of law arises there is a discretion and a person may approach the High Court against such refusal but that has to be done within 90 days. Sub-section (2) of section 61 enables the High Court to record a satisfaction with regard to the correctness of the decision of the Tribunal and after it receives an application under sub-section (1), therefore, only upon compliance of sub-section (1) that the High Court can deal with the application and then find out for the purpose of recording its satisfaction as to whether the Tribunal''s decision not to refer any question and stated to be of law for opinion of this court is correct or not.

The nature of the power must therefore be borne in mind. There is no comparison of this power with that of an appellate power and to approach the appellate authority against an erroneous or incorrect decision is held to be a right conferred by the statute. More often than not we have seen a provision such as "an appeal shall lie" which would be indicate that an appellate power is created by the statute and that also confers a right in the aggrieved party to approach the appellate authority or Tribunal. It is a remedy to correct an erroneous, incorrect and illegal order and at the first available opportunity and within the statutory framework, that the appellate authority has been conferred further power to condone the delay in filing of an appeal. It is in such circumstances, that section 60 uses the words and of great significance, namely, the appellate authority may admit the appeal under section 55 after the period of limitation laid down in the said section if the appellant satisfies the appellate authority that he has sufficient cause for not preferring the appeal within such period. In comparison in section 59, the Legislature clarifies that for computation of the period laid down under sections 55, 57 and 61, the provisions of sections 4 and 12 of the Limitation Act, 1963, shall so far as may be apply. Reading these two provisions together reveals the legislative intent. For the purposes of computation of the period of limitation laid down by sections 55, 57 and 61 which are powers of appeal, revision and of referring of a statement of case to the High Court, the provisions of sections 4 and 12 of the Limitation Act, 1963 can be applied but that also so far as may be. Sections 4 and 12 of the Limitation Act, 1963 read as under:

"4. Expiry of prescribed period when court is closed.--Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens.

Explanation.--A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day.

Exclusion of time in legal proceedings.--(1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.

(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.

(3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded.

(4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.

Explanation.--In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded."

By section 3 bar of limitation has been provided whereas what is dealt with by section 4 is expiry of prescribed period when court is closed. This is a provision where if the period prescribed for any suit, appeal or application expires on a date when the court is closed, that suit, appeal or application may be instituted, preferred or made on the date when the court reopens.

Then comes section 5 where extension of prescribed period in certain cases is provided. That provision or section reads as under:

"5. Extension of prescribed period in certain cases.--Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation.--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."

A perusal thereof would reveal that save and except any application under any of the provisions of Order XXI of CPC any appeal or application is capable of being admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. It is this provision which is expressly included in section 60 of the Bombay Sales Tax Act, 1959. It has been made applicable to the exercise of the appellate power under that Act. Sections 4 and 12 of the Limitation Act, 1963 only enable an applicant to institute or prefer or make any suit, appeal or application after reopening of the court and in the event, it is closed on the expiry of the last day of filing the proceedings, section 12 only enables exclusion of time. These are therefore provisions enabling computation of the period of limitation by excluding from it certain days. The date on which the judgment is pronounced and the time requisite for obtaining the copy thereof and lastly application being made for leave to appeal from a decree for order, the time requisite for obtaining the copy of the judgment shall also be excluded. Such a provision is distinct from section 5 of the Limitation Act, 1963 and that enables extension of prescribed period in certain cases. Mr. Sonpal does not dispute that the ambit and scope of these provisions, namely, sections 4, 12 and section 5 is distinct and different. His contention is that the word "only" is not appearing in section 59 therefore, the Division Bench judgment is erroneous.

We are unable to agree with Mr. Sonpal because it is not the word "only" referred by the Division Bench but a conjoint and combined reading of the legal provisions referred by us which enables even us to hold that application of section 5 of the Limitation Act, 1963 is excluded. The exclusion can be culled out from a combined reading of the legal provisions and that is not contrary to the Supreme Court judgment even in the case of State of M.P. Vs. Anshuman Shukla, . In this regard paras 29 and 30 of the judgment in State of M.P. Vs. Anshuman Shukla, can be usefully referred. They read as under:

"29. Further, in the case of Hukumdev Narain Yadav Vs. Lalit Narain Mishra, ; AIR 1974 SC 480, a three-Judge Bench of this court, while examining whether the Limitation Act would be applicable to the provisions of the Representation of the People Act, observed as under:

''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.''

According to Hukumdev Narain Yadav Vs. Lalit Narain Mishra, ; AIR 1974 SC 480, even if there exists no express exclusion in the special law, the court reserves the right to examine the provisions of the special law, and arrived at a conclusion as to whether the legislative intent was to exclude the operation of the Limitation Act."

The legislative intent to exclude the applicability of section 5 of the Limitation Act, 1963 has to be found out with reference to the nature of the power which is invoked and which is requested to be exercised, whether a party or person has absolute right to invoke it and equally whether the court can exercise it and all this has to be examined with reference to the provisions of the special law. It is not that an express exclusion must be found in the section which is being construed or interpreted, namely, section 61 of the Bombay Sales Tax Act, 1959. It is possible to arrive at the conclusion and which has been arrived by the Division Bench by a combined or conjoint reading of the legal provisions as ultimately the statute must be read as a whole. Its provisions have to be read together and harmoniously so as to discern the legislative intent. If a combined reading enables us to reach the same conclusion as reached by the Division Bench then, we do not find any merit in the contentions of Mr. Sonpal.

Equally we do not find merit in other contention that the Division Bench has omitted from consideration the decision of this court in Vasanji Ghela and Co. Vs. The State of Maharashtra and Another, . The Division Bench has made reference to all the decisions in the field. The decision in Mehta Construction Company Vs. State of Maharashtra and another, has been also referred and in that the Division Bench deciding it has made reference to the judgment in the case of Vasanji Ghela and Co. Vs. The State of Maharashtra and Another, . It is not therefore, possible for us to agree with Mr. Sonpal that there is any conflict of opinion between the judgment rendered in the case of Vasanji Ghela and Co. Vs. The State of Maharashtra and Another, and Mehta Construction Company Vs. State of Maharashtra and another, . We have perused the judgment in the case of Mehta Construction Company Vs. State of Maharashtra and another, and we find that the Division Bench expressly held that the decision in the case of Vasanji Ghela and Co. Vs. The State of Maharashtra and Another, is no longer good law to the extent it decided that section 5 of the Limitation Act, 1963 can be availed of so far as application to the Tribunal or a reference to the High Court under the Bombay Sales Tax Act, 1959 are concerned. This conclusion has been reached by the Division Bench after referring extensively to Vasanji Ghela and Co. Vs. The State of Maharashtra and Another, . In para 6 and thereafter giving elaborate reasons in para 10 as to why it holds that Vasanji Ghela and Co. Vs. The State of Maharashtra and Another, is no longer the correct law. In such circumstances, the doctrine or rule of precedents and as laid down by the honourable Supreme Court applies. In other words, there are two Division Bench judgments, Mehta Construction Company Vs. State of Maharashtra and another, and Commissioner of Sales Tax, Maharashtra State Vs. N.H. Polymers, of this court which bind us. They make extensive reference to the judgments of the honourable Supreme Court. That is how the rule of precedents applies in this case.

In that regard the reliance placed by Mr. Joshi on a Division Bench order to which one of us (S.C. Dharmadhikari, J.) is a party in the case of Commissioner of Sales Tax Vs. Jalani Tools (India) Ltd., , decided on August 12th, 2014 is accurate.

The following paragraphs from that judgment would reiterate the rule of binding precedent (pages 114 and 115 in 76 VST):

"17. We have carefully read this order and we do not see how Mr. Nair urges before us that all shades and aspects of the controversy have not been noted and duly considered. His complaint is that the counsel for the State at the relevant time did not bring to the notice of this court several vital aspects of the matter nor did he advance complete submissions and arguments.

The attempt of the Revenue in this case is to get over this order by pointing out that it is not binding on us as several aspects were not noted and duly considered in it nor this court had the benefit of complete arguments and submissions.

We are afraid that the Revenue persists in such attempts and as noted repeatedly. The honourable Supreme Court in the case reported in Central Board of Dawoodi Bohra Community and Another Vs. State of Maharashtra and Another, reiterated the principle of binding precedents in the following terms:

''7.... Per incuriam means of decision rendered by ignorance of a previous binding decision such as a decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law. A ruling making a specific reference to an earlier binding precedent may or may not be correct but cannot be said to be per incuriam...''

20.... A binding precedent cannot be ignored or brushed aside on the spacious plea that better arguments could have been canvassed or something escaped the attention of the Bench while deciding the earlier case. Such niceties and attempts to get over a binding precedent have thus been repeatedly discouraged. Thus, certain aspects were not considered or the relevant provisions were not brought to this court''s Division Bench in the earlier decision is no reason to discard the views of the co-ordinate Bench. (see para 7, page 1606 of this judgment). We would not, therefore, be carried away by Mr. Nair''s submissions and brush aside and ignore this order. An attractive or better and fuller assistance in the later case is no ground not to follow and apply the binding precedent. If this course is permitted the rule of precedent would be rendered completely redundant or superfluous."

The course which we propose to follow, namely, to apply the ratio in Commissioner of Sales Tax, Maharashtra State Vs. N.H. Polymers, is nothing but abiding by a judgment of the honourable Supreme Court in the case of State of Gujarat and Another Vs. Hon''ble Mr. Justice R.A. Mehta (Retd.) and Others, . The honourable Supreme Court held as under:

"35. There can be no dispute with respect to the settled legal proposition that a judgment of this court is binding, particularly, when the same is that of a co-ordinate Bench, or of a Larger Bench. It is also correct to state that, even if a particular issue has not been agitated earlier, or a particular argument was advanced, but was not considered, the said judgment does not lose its binding effect, provided that the point with reference to which an argument is subsequently advanced, has actually been decided. The decision therefore, would not lose its authority, ''merely because it was badly argued, inadequately considered or fallaciously reasoned''. The case must be considered, taking note of the ratio decidendi of the same, i.e., the general reasons, or the general grounds upon which, the decision of the court is based, or on the test or abstract, of the specific peculiarities of the particular case, which finally gives rise to the decision. (Vide : Smt. Somavanti and Others Vs. The State of Punjab and Others, , Ballabhadas Mathurdas Lakhani and Others Vs. Municipal Committee, Malkapur, , Ambika Prasad Mishra Vs. State of U.P. and Others, and Director of Settlements, Andhra Pradesh and Others Vs. M.R. Apparao and Another, ."

In such circumstances, the other argument of Mr. Sonpal also fails to impress us. In view of the above discussion, we are of the opinion that in the light of the judgment of the Commissioner of Sales Tax, Maharashtra State Vs. N.H. Polymers, , we have no power to condone the delay in filing of the sales tax applications. The notices of motion are therefore dismissed but without any order as to costs.