THE COMMISSIONER OF SALES TAX, UTTAR PRADESH, LUCKNOW versus PARSON TOOLS AND PLANTS, KANPUR

SARKARIA, J.-The common question of law for determinati?n. in these appeals by special Jcaye .is : Whether:s· 14(2) of the ~imita­

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tion Act, in terms, or, in prmc1ple,, ca~ be invoked for excludmg the time spent in prosecuting an apphca!Jon under R~le .68(6) ot the U.P. Sales Tax Rules for setting aside the order of d1snussal of appeal in default under the U.P. Sales Tax Act, 1948 (for short, the Salestax Act) 'from computation of the period of !imitation for filing a revision under that Act

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It arises out of these circumstitnccs. C The respondent, M/s. Parson Tools and Plants (hereinafter refer· . red to us the usscsscc) carries on business at Kanpur. The SaleSi·tax Officer assessed tux for the assessment years, 1958-1959 and 1959·60, on the nsscssce by two scpnrntc order~. The nssessee filed appeals against those orders bcforn the Appellate Authority. On May 10, 1 Y63, when tho up peals cnmo up for hcnring, the nsscssee was abserlt.

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The appeals were, therefore, dismissed in del'llult by virtue of Rule 68 (5) of the U.P. Sulcs-tux Rules, Sub-rule (6) of Rules 68 pro·· vided for setting aside such dismissnl and re-admission of the appeal. On the same duy (May lO, 1963), the asscssec made two applications in accorduncc willl Sub rule ( 6) for setting aside the dismissal. During the pcndcni.:y of those upplic:1tions, Sub-rule (5) of Rule 68 was declared 11/tra. rirt'.\' the ruli.:-muking authority by Manchanda J,

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of the High Court who further held that t)1c Appellate-Authority could n!ot dismiss. an appeal in default but was bound to decide it on merits even though the appellant be absent. When these applications under Rule 68(6) came up for hearing, on 20-10·1964, the Appellate-Authority dismissed them outright in view of the ruling of Manchanda J. Against the order of dismissal of his appeals, the assessee on J 6-12-1964 filed two revision petitions under s. 10 of the

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Sales, tax Act, before the Rcvisional Authority (Judge (Revisions) F Sales-tax). These revision petitions having been filed more than 18 months after the dismissal of the appeals, which was the maximum period of limitation prescribed by sub-. 73) of s 10-were prima facie time-barred. They were however, accompanied by two applications in which the assessee prayed for exclusion of the time spent by him in prosecuting the abortive proceedings under Rule 68 ( 6) for

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setting aside the dismissal of his appeals. The Revisional Authority found that the asscssee had been pursuing his remedy under Rule 68 ( 6) with due diligence and in good faith. lt therefore excluded the time spent in those proceedings from computation of limitation by applying s. 14, Limitation Act and in consequence, held that the revision petitions were withjn time. On the motion of the ·Cominis.sioner of Sales-tax, the Revisional Authority made two reference&

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under s. 11 (1) of the S:1Jcs-tax Act to the High Court for answering the following question of law :

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"Whether under the circumstances of the case section 14 of the Limitation Act extended the period rdr filing

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SUl'REM~ [197 5] 3 s.c.it. of the revmons by the time during w.hich the restoration applications remained pending as being prosecuted bona fide."

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The references were heard by a Full Bench of three learned Judges, each of whom wrote a separate Judgment. Dwivedi J. with whom Singh J. agreed after rc~ra~ing the qu~stion .held "that the tiin~ s~nt in prosecuting the application for settmg aside the order of dismissal 8 of appeals in default can be excluded from computing the period of lim~tation for filing the revision by the application of the principle unde11ying s. 14(2). Limitation Act."

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Hari Sl/Varup J. was of the opinion : "The Judge (Revisions) Sales-tax while hearing the revisions under s. 10 of the U.P. Sales Tax Act does not act as a Court but only as a revenue tribunal and hence the provisions of the Indian Limitation Act cannot apply to proceedings before him. If the Limitation ·Act does not apply then neither s. 29(2) nor s. 14(2) of the Limitation Act will a,pply to proceedings before him." The learned Judge was further of the view that the principle of s. 14(2) also, could not be invoked to extend the time beyond the maximum fixed by the Legislature in sub-section (3-B) of s. lO of the Sales-tax Act.

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Sub-section (2) of s. 14, Limitation Act, runs thus:

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"In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceedings, whether in a Cour of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Ctmrt which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it." (emphasis added). If will be seen that this sub-section will apply only if- ( 1) both the prior and subsequent .procedings are civil

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proceedings prosecuted by the same party; (2) the prior proceedings had been prosecuted with due

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diligence and in good faith; (3) the failure of the prior proceedings was due to a G

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defect of jurisdiction or other cause of a like nature;

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( 4) both the proceedings are proceedings in a Court.

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~r. Karkhani~, learned Counsel. appearing for the appellant does not dispute the view taken by the High Court that the proceedings in 9uestion under the Sales-tax Act could be deemed as civil proceed- H mgs. Learned Counsel, however, contends that the authoritir.s irrespective of whether they exercise, original, appellate or revisional jurisdiction under the Sales-tax Act are not 'Courts' within the contemplation of s. 14(2) of th~ Limitation Act. It is pointed out that this question stands concluded by this Court's decision in Jagannath Prasad v. State of "l/.P.(')

pp. 746–747

Mr .. Karkhanis is right that this matter is no longer res integra. In Shrimati Ujjam Bhai v. State of U.P.( Hidayatullah J. (as he then was) speaking for the Court, observed :

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"The taxing authorities are instrumentalities of the State. They are not a part of the legislature, nor are they a part of the judiciary. Their functions are the assessment and collection of taxes and in the process of assessing taxes, they follow a pattern of action which is considered Judicial. They are not thereby converted into Courts of Civil judicature. They will remain the instrumentalities of the State and are within the definition or "State'' in Article 12."

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The above observations were quoted with approval by this Court

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in Jagannath Prasad's case (supra), and it was held that a Sales-tax D Officer under U.P. Sales-tax Act, 1948 was not a Court within the meaning of s. 195 ot the Code of Criminal Procedure although he is required to perform certain quasi-ju~icial functions. The decision in Jagannath Prascufs case, it seems, was not brought to the notice of the High Court. In view of these prononcements of this Court, there is no room for argument that the Appellate-Au¢ority and the

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Judge (Revisions) Sales-tax exercising jurisdiction under the Salestax Act, are courts." They are merely administrative Tribunals and "not courts." Section 14, Limitation Act, therefore,. does not, in terms apply to proceedings before such Tribunals. ·

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Further question that remains is : Is the general principle underlying s.14 (2) applicable on grounds of justice, equity and good

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conscience for excluding the time spent in prosecuting the a1'ortive applications under Rule 68(6) before the Appellate Authority, for computing limitation for the purpose of revision applications. Mr. Karkhanis m1intains that the answer to this question; also, must be in the negative because definite indications are available in the scheme and language of the Sales-tax Act, which exclude the application of s. 14(2), Limitation Act even in principle or by analogy. LearnM

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Counsel further submits that the ratio of the Privy Council decision in G Ranuk!.tt Ramkissen Dass v. E. D. Sesson & Co.( relied upon by the majority judgment of the High Court is not applicable for computing limitation prescribed under the Sales-tax Act. Reference in this connection has been made to Purshottam Dass Hassaram v. lmpex (India) Ltd.( wherein a Division Bench of the Bombay High Court explained the rule of decision in Ramdutt's case (supra) and found

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it to be in.apPiicable for the purpose of computing limitation for applications under the Arbitration Act, 1940. · [196~)

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1n9 c, Bom. The material part of s. l 0 runs thus :

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"(3) (i). The Revision Authority ....... may, the purpose of satisfying itself as to the legality or propnety of any order made by any appellate or asscssin~ auth.ority und.er this Act in its discretion call for and examine, either on its own m~tion or on the application o!' the Commissioner of Sales-tax or the person aggrieved, the record of such order and pass such order as it may think fit.

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*'

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* * * (3A)

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(3B) The application under sub-section (3) shall be made within one yen1· from the date of ~crvice of the order complained of, but the Revising Authority mny on proof of ~ufficient cnusc entertain nn upplicntinn within a furth11r period oe six months."

p. 748

Three features of the scheme ot' the nbove provision a.re note- D worthy. The first is that no limitntion has been .p!'escribcd for the suo motu exercise of its jurisdiction by the Rcvisin~ Authority. The second is that the period of one year prescribed as limitation for filing an application for revision by th1~ uggrk:vcd pmty is unusually long. The third is that the Revising Authoritv hns no discretio11 ti> extend this ·period beyond a further period of six months, even on 11ufficient cause shown. As rightly pointed out the minority judgment of E the High Cou;t, pe.ndcncy of proceedings of the nature contemplated by s. 14(2) of the Limitation Act, may amount to a sufficient cause for condoning the delay and extending the limitation for filing a revision application, but s. (3-B) of the Sales-tax Act, gives no ,iurisdiction to the Revisinli Authority to extend the limitation, even in such a case, for a further period of more than six months.

p. 748

The three stark features of the scheme and langua!!e of the above provision, urmistakably show that the legislature has 'deliberately .excluded the application of the principles und1?rlving ss. 5 and 14 of the Limitation Act, except to the extent and in the truncated form embodied in sub-s. (3-B) of s. 10 of the Sales-tax Act. Delay in disposal of revenue matters adversely affects the steady inflow of revenues and the financial stability of the State. Section 10 is therefore G designed to ensure speedy and final. determination of fiscal matters within a reasonably certain time-schedule.

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It cannot be said that by excluding the unrestricted application of the principles of ss. 5 and 14 of the Limitation Act, the Le1~islature has made the provisions of s. JO, unduly oppressive. In most cases, the discretion to extend limitation, on sufficient cause bein~: shown for a further period of six months only, given by sub-s. (3-B) would be enough to afford relief. Cases are no doubt conceivabfo where an aggrieved party, despite sufficient cause, is unable to make an application for revision within this maximum period uf 18 months. Such harsh cases would be rare. Even in such exceptional cases of extreme hardship, the Revising Authoritly may, on its own motion, entertain revision and grant relief.

pp. 748–749

Be that as it may, from the scheme and laneuage of S. 10, the intention of the Legislature to exclude the unr~stricted application of the principles of ss. 5 and I 0 of the Limitation Act is manifestly clear. The~e 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. An enactment being the will of the legislature, the paramount rule of interpretation, which overrides all others, is that a statute is to be expounded "according to the intent of them that made it''. "The will of the lcgislati1re is. the supreme law of the lnl)d, and demands perfect obdience". (1) "Judicial power is never exercised" said Mnrshall C. J, of the United States, "for the purpose of giving effect to the will of the Judges; always for the purpose of giving effect to the will of the Legislature;

p. 749

or in other words, to the will of the lnw''. D If the legislature wilfully omits to incorporate something t1f an analogous law in a subsequent statute, or evc11 if there is n omissus in a statute, the language of which is otherwise plnin nnd unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the ,Quisc of interpretation, by analogy or im:plication, somethine; what it thinks to be a general

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principle of justice a11d equity. To do so would be cntrenchit1g upon the preserves of Leiislatures, 'The primary function of a court of law being jus dicere and not jus dare.' , In the light of what· has been said above, we are of the opinion that the High Court was in error in importing whole hog the principle of s. 14(2) of the Limitation Act into s. 10 (3-B) of the Sales-tax Act.

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The ratio of the Privy Council decision in Ramdutt Ramkissen Dass v. E. D. Sasson & Co. (Supra) relied upon bv the High Court is not on speaking terms with the clear language of s. 10 (3-B) of the Sales-tax Act. That decision was rendered Jong b~fore the passage of the Indian Arbitration Act, 1940. It Jost its efficacy after

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the enactment of the Arbitration Act which contained a specific provision in regard to exclusion of time from computation of limitation.

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The case in point is Purshottam Dass Hussaram v. Index (India) Ltd. (supra). In this Bombay case, the question was, whether the suit was b~_rred by limitation. It was not disputed that Article 115

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the Limitation Act governed the limitation and if. no other factor was to be taken into consideration, the suit was filed beyond time. But what was relied upon by the plaintiff for the purpose of saving Maxwell 0n Interpretation of Statutes, 11th 2 limitation was the fact that there were certain infructuous arbitration proceedings and ·if the time taken in prosecuting those proceedings was excluded under s. 14, the suit would be within limitation. It was held that if s. 14 were to be construed strictly, the plaintiff would not be entitled to exclude the period in question.

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On the authority ot Ramdutt Ramkissen's case (supra), it. was then contended that. the time taken in arbitration proceedings should be excluded on the analogy of s. 14. This contention was also negatived on the ground that since the decision ot the Privy Council, the legislature ha1:l in s. 37(5) of the Arbitration Act, 1940, provided as to what er.tent the provisions of the Limitation Act would be applicable to th¢ proceedings before the arbitrator. Section 37 ( ~:) wa.s as follows :

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c·

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"Where the court orders that an award be set aside or orders, after the commencement of an arbitration, that the arbitration agreement shall cease to have effect with res· pect to the difference referred, the period between the commencement of the arbitration and the date of the order ot the Court shall be excluded in computing the time prescribed by the Indian Limitation Act, 1908, for the commencement of the proceedings (including arbitration) with

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respect to the difference referred." The reasons advanced, the observations made and the rule enunciated by Chagla CJ., who spoke for the Bench in that case, a!'e opposite and may be extracted with advantage :

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" ...... we h~ve now a statutory provision for exclusion of time taken up in arbitration proceedings when a suit is filed, and the question arises of computing the period of limitation with regard to that suit, and the time that has got to be excluded is only that time which is taken up as provided in s. 3 7 ( 5). There must be an order of the Court setting aside• an award or there must be an order of the Court declaring that the arbitration agreement shall cease to have effect, and the period between the commencement ot ~he arbitration and the date of this order is the period that has got to be excluded.

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It is therefore no longer open to the Court to rely on s. 14 Limitation Act as applying by analogy to arbitration proceedings. If the Legislature intended that s. 14 should apply and that all the time taken up in arbitration proceedings should be excluded, then there was no reason to enact s. 37(5). The very fact that s. 37(5) has been enacted clearly ~hows that the whole period referred to in s. 14, . Limitation Act is not to be excluded but the limited period- H indicated ins. 37(5).

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• • • •·

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c. s. v. Parson Tools (Sarkaria, J.) ,. 51

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''It may seem rather curious-and it may' also in certain cases result in hardshi~as to wpy the legislature should not have excluded all time taken up in good faith before an arbitrator just as the time taken up in prosecuting a suit or an appeal in good faith is excluded. But obviously ·the Legislature did not intend that parties should . waste time infructuous proceedings before arbitrators. The Legislature has clearly indicated that limitation having once begun to run, no time could be excluded merely because parties chose to go before an arbitrator without getting an award or without coming to Court to get the necessary order indicated in s. 37(5)."

p. 751, margin A

What the learned Chief Justice said about the inapplicability of s. 14, Limitation Act, in the context of s. 3 7 ( 5) of the Arbitration Act, holds good with added force with reference to s. 10 (3-B) of the Sales-tax Act.

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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 upto a specified time-limit and no further, than 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 s. 14(2) of the Limitation Act.

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We have said enough and we may say it again that where the legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the court to give full effect to the same with· out scanning its wisdom or policy, and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the Jaw-giver; more so .if the statute is a taxing statute. We will close the discussion by recalling what L-Ord Hailsham (') has said recently, in regard to importation of the principles of natural justice into a statute which is a c!ear and complete Code, by itself :

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"It is true of course that the courts will lean heavily against any construction of a statute which would be manifestly fair. But they have no power to amend or supplement the language of a statute merely because in one view Ber~ of the matter a subject feels himself entitled to a larger degree of say in the making of a decision than a statute accords him. Still less is it the functioning of the courts to form first a judgment on the fairness of an Act of Parliament and then to amend or supplement it with new provisions so as to make it conform to that judgment."

pp. 751–752, margin G

For all the r~asons aforesaid, we are of the opinion that the ob· jcct, the scheme and language of s.10 of the Sales-tax Act do not permit the invocation of s.14(2) of the Limitation Act, either, in terms, or, in principle, for excluding the time spent in. prosecuting proc:ee· dings for setting aside the dismissal of appeals in default, from com· putRtion of the period of limitation prescribed for filing revillion under the Snlcs.tax. Accordingly, we answer the question referred, !he ncgntive,

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1 n the result, we set aside the judgment c •he High Court and ac· ccpt these oppcnls. Since the appeals hnvc 1*'1 heard ex·parte, there will be no ordc:r as to costa. D V.M.K. 470Sup. CI/75-2500-27-11-75-GIPF.

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