Saket Bricks Traders vs Additional Commissioner (Legal) Trade Tax and Others

The Petitioner seeks a writ of certiorari quashing the order dated 20th April, 1996 whereby the application of the Petitioner for compounding has been rejected on the ground that the application was filed beyond time.

The Petitioner is partnership firm and is carrying on the business of manufacturing and sales of bricks. The Petitioner for the year 1994-95 moved an application on 5th may, 1995 for compounding under compounding scheme introduced by the State Government in exercise of power u/s 7D of the U.P. Trade Tax Act, 1943 (hereinafter referred to as the Act) for lump sum payment of tax during the relevant period. This application has been rejected by Respondent No. 1 by the impugned order dated 20* April, 1996 on the ground that the application was filed beyond the period prescribed for submitting the application for compounding.

It is not disputed that the Petitioner had filed an application for compounding under the scheme introduced by the State Government in exercise of power u/s 7-D of the Act, which was beyond time by 5 days. The contention of Shri Rajesh Kumar, learned Counsel for the Petitioner, is that the Petitioner had also filed an application to condone the delay and Respondent No. 1 without considering the facts as stated in the application rejected the application filed by the Petitioner.

The sole question to be decided in this petition is whether Section 5 of the Limitation Act is applicable to an application filed for compounding u/s 7-D of the Act. Section 5 of the Limitation Act, 1963 in applicable to the courts. This legal position is settled in Nityananda, M. Joshi and Others Vs. Life Insurance Corporation of India and Others, . The Apex Court held that Section 4 and 5 of the Limitation Act deal with applications to the courts and the Labour Court is not a Court and, therefore, an application u/s 33C(2) cannot be held to be barred under Article 137 is so far as the claim was for period beyond three years. In the Commissioner of Sales Tax, U.P., Lucknow v. Parson Tools and Plants, Kanpur 1975 U.P.T.C. 297, the Supreme Court held that the provisions of Section 14(23) of the Limitation Act is not applicable to the proceedings before the authorities under the Sales Tax Act irrespective of whether they exercise, original, appellate or revisional jurisdiction under the Sales Tax Act.

The learned Counsel for the Petitioner then urged that the provisions of Sections 4 to 24 of the Limitation Act will be applicable in view of the provisions of Section 29(2) of the Limitation Act which provides that 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. This provision will be applicable only when the authority functions as a court. In Mukri Gopalan v. Cheppilat Puthanpurayil Abooacker on the facts it was found that the appellate authority constituted u/s 18 of the Kerala Rent Act, 1965 functions as a Court and, therefore, the provisions of Section 5 of the Limitation Act was made applicable in respect of appeals filed by the Appellant keeping in view the provisions of Section 29 (2) of the Limitation Act.

That apart if statute makes Section 5 or any other provisions of the Limitation Act applicable in respect of any application, appeal or revision but in respect of other applications those section of the Limitation Act have not been excluded, it will be taken that they have been excluded by the legislature. In the Commissioner of Sales Tax, U.P., Lucknow v. Parson Tools and Plants, Kanpur 1975 U.P.T.C. 297, the court considering the provisions of Section 10 of the U.P. Sales Tax Act held that the function of the legislature to exclude the unrestricted application of the principles of Section 5 and 14 of the Limitation Act is manifestly clear. The Court observed as follows:

Be that as it may, from the scheme and language of Section 10, the intention of the Legislature to exclude the unrestricted application of the principles of Sections 5 and 14 of the Limitation Act is manifestly clear. These provisions of the Limitation Act which the legislature did not, after due application of mind, incorporate in the Sales Tax Act, Cannot be imported into it by analogy....

Lastly the compounding scheme was sponsored by the State Government u/s 7-D of the Act. The Scheme has given a cut off date. If any persons wants to take advantage of the said Scheme he was to submit an application within that period. The intention of the legislature was obvious as to fixing the time limit. If the period of limitation is extended by applying the principles laid down u/s 5 of the Limitation Act, the Court could extend the period of the Scheme which was not envisaged by the State Government.

In view of the above, the impugned order does not require any interference.

The writ petition is accordingly dismissed. However the parties shall bear their own costs.