The Commissioner of Sales Tax, Uttar
Pradesh, Lucknow Vs. Parson Tools And Plants, Kanpur [1975] INSC 51 (27
February 1975)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
CHANDRACHUD, Y.V.
GUPTA, A.C.
CITATION: 1975 AIR 1039 1975 SCC (4) 22
ACT:
Interpretation of Statutes--Legislature
wilfully omitting to incorporate an analogous law in subsequent
statute--Language plain and unambiguous--Courts if competent to supply the
omission by analogy or implication.
Interpretation of Statutes--Law of
limitation--Special statute prescribing certain period of limitation--Provision
for extension up to specified time-limit on sufficient cause being
shown--Time-limit, if could be extended on anology of s. 14(2) of Limitation
Act.
U.P. Sales Tax Act, 1948 and U.P. Sales-tax
Rules, Rule 68--Appellate Authority and Judge (Revisions) under the Act, if
Courts within the meaning of s. 14(2) of Limitation Act.
U.P. Sales Tax Act, 1948, s. 10(3)(i) and s. 10(3B)--Revision
application--Revising Authority not conferred with discretion to extend period
of limitation beyond six months even on sufficient cause shown--Principle of s.
14(2) of Limitation Act, if could be imported into s.
10(3B) by analogy.
HEADNOTE:
The Sales-Tax Officer assessed tax for the
assessment years 1958-1959 and 1959-60, on-the respondent assessee by two
separate orders. The assessee filed appeals against those orders before the
Appellate Authority. On May 10, 1963, when the appeals came up for hearing, the
assessee was absent. The appeals were, therefore. dismissed in default by
virtue of Rule 68(5) of the U.P. Sates-tax Rules. Subrule (6) of Rule 68.
provided for setting aside such dismissal and for re-admission of the appeal.
On the same day (May 10, 1963), the assessee made two applications in accordance
with Sub-rule (6) for setting aside the dismissal. During the pendency of those
applications, Subrule (5) of Rule 68 was declared ultra vires the rulemaking
authority by Manchanda J. of the High Court who further held that the
Appellate-Authority could not dismiss an appeal in default but was bound to
decide it on merits even though the appellant be absent. When these
applications under r. 68(6) came up for hearing. on 20-1064, the
Appellate-Authority dismissed them outright in view of the ruling of Manchanda
J. Against the order of dismissal of his appeals, the assesees on 16-12-1964
filed two revision petitions under s. 10 of the Sales-tax Act, before the
[Judge (Revisions) Sales-tax]. These revisions petitions having been filed more
than 18 months after the dismissed of the appeals which was the maximum period
of limitation prescribed by sub-s. (3) of s. 10-were prima facie time-barred.
They were however, accompanied by two application's in which the assessee
prayed for exclusion of the time spent by him in prosecuting the abortive
proceedings under r. 68(6) for setting aside the dismissal of his appeals. The
Revisional Authority found that the assessee had been pursuing his remedy under
r. 68(6) with due diligence and in good faith. It 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 within
time. On the motion of the Commissioner of Sales-tax. the Judge (Revisions)
Sales-*ax made two references under s. 11(1) of the Sales tax Act to the High
Court for answering the following question of law "Whether under the
Circumstances of the case, s. 14 of the Limitation Act extended 'the period for
filing of the revisions by the time during which the restoration applications
remained pending as being prosecuted bona fid." 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. agree utter refraining the
question held "that the time spent in prosecuting the application for
setting aside the order of dismissal of appeals in default can be 744 excluded
from computing the period of limitation for filing the revision by the
application of the principle underlying s. 14(2), Limitation Act." Hari
Swarup 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 is 14(2) of the Limitation Act will
apply 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. 10
of the Sales-tax Act.
These appeals have been preferred on the
basis of the special leave granted by this court.
Allowing the appeals,
HELD : (i) If the legislature wilfully omits
to incorporate something of an analogous law in a subsequent statute, or even
if there is a casus omissus in a statute, the language of which is otherwise
plain and unambiguous, the Court is not competent to supply the omission by
engrafting on it or introducing in it, under the guise of interpretation, by
analogy or implication, something what it thinks to be. a general principle of
justice and equity. To do so "would be entrenching upon the preserves of
Legislature", the primary function of a court of law being jus dicere and
not jus dare. [749D-E] (ii) 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, 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 s. 14(2) of the
Limitation Act. [751D-E] Ramdutt Ramkissen Dass v. E. D. Sesson & Co. A.I.R.
1929, P.C. 103 and Purshottam Dass Hassaram v. Impex (India) Ltd.
A.I.R. 1954 Bom. 309, referred to.
(iii) In view of the pronouncements of this
Court in Shrimati Ujjani Bhai v. State of U.P., [1963] 2 S.C.R. 778 and
jagannath Prasad v. State of U.P. [1963] 2 S.C.R. 850, there is no room for
argument that the Appellate-Authority and the Judge (Revisions) exencising
jurisdiction under the U.P. Sales Tax Act, 1948, 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.
[747E] (iv) Three features of the scheme of provisions of s. 10(3)(i) and
section 10(3B) are noteworthy. The first is that no limitation has been
prescribed for the suo matu exercise of its jurisdiction by the Revising
Authority. The second is that the period of one year prescribed as limitation
for filing an application for revision by the aggrieved party is unusually
long. The third is that the Revising Authority has no discretion to extend this
period beyond a further period of six months, even on sufficient cause shown.
The three stark features of the scheme and language of these provisions,
unmistakably show that the legislature has deliberately excluded the
application of the principles of Ss. 5 and 14 of the Limitation Act. except to
the extent and in the truncated form embodied in sub-s. (3B) of s. 10 of the
Act. [748D-F]
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 1458-1459 of 1970.
Appeal by special leave from the judgment and
order dated the 1st January, 1970 of the Allahabad High Court in S.T.R. No. 344
and S.T.R. No. 347 of 1967.
745 N. D. Karkhanis and 0. P. Rana, for the
appellant.
No. appearance, for the respondent.
The Judgment of the Court was delivered by
SARKARIA, J.-The common question of law for determination in these appeals by
special leave is': Whether s. 14(2) of the Limitation Act, in terms, or, in
principle, can be invoked for excluding the time spent in prosecuting an
application under Rule 68(6) of the J.P. Sales Tax Rules for setting aside the
order of dismissal of appeal in default, under the U.P. Sales Tax Act, 1948
(for short, the Sales= Act), from computation of the period of limitation for
filing a revision under that Act? It arises out of these circumstances.
The respondent, M/s. Parson Tools and Plants
(hereinafterreferred to as the assesse) carries on business at Kanpur.
The Sales-tax Officer assessed tax for the
assessment years, 1958-1959 and 1959-60, on the, assessee by two separate
orders. The assessee filed appeals against those orders before the Appellate
Authority. On May 10, 1963, when the appeals came up for hearing, the assessee
was absent. The appeals were, therefore, dismissed in default by virtue of Rule
68(5) of the U.P. Sales-tax Rules. Sub-rule (6) of Rules 68 provided for
setting aside such dismissal and readmission of the appeal. On the same day
(May 10, 1963), the assessee made two applications in accordance with Subrule
(6) for setting aside the dismissal. During the pendency of those applications,
Sub-rule (5) of Rule 68 was declared ultra vires the rule-making authority by
Manchanda J. of the High Court who further held that the AppellateAuthority
could not 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 16-12-1964 filed two revision petitions under s.
10 of the Sales-tax Act,, before the
Revisional Authority (Judge (Revisions) 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 timebarred. 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 setting aside the dismissal of
his appeals. The Revisional Authority found that the assessee had been pursuing
his remedy under Rule 68(6) with due diligence and in good faith. It 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 within time. On the motion of the Commissioner of Sales-tax, the
Revisional Authority made two references under s. 11 (I) of the Sales-tax Act
to the High Court for answering the following question of law :
"Whether under the circumstances of the
case, section 14 of the Limitation Act extended the period for filing 746 of
the revisions by the time during which the restoration applications remained
pending as being prosecuted bona fide." 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 reframing the
question held "that the time spent in prosecuting the application for
setting aside the order of dismissal of appeals in default can be excluded from
computing the period of limitation for filing the revision by the application
of the principle underlying S. 14(2). Limitation Act." Hari Swarup 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 apply 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. 10 of the
Sales-tax Act.
Sub-section (2) of s. 14, Limitation Act,
runs thus "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 Court 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 Court 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 proceedings are civil proceedings
prosecuted by the same party;
(2) the proceedings had been prosecuted with
due diligence and in good faith;
(3) the failure of the prior proceedings was
due to a defect of jurisdiction or other cause of a like nature;
(4) both the proceedings are proceedings in a
Court.
Mr. Karkhanis, learned Counsel appearing for
the appellant does not dispute the view taken by the High Court that the
Proceedings in question under the Sales-tax Act could be deemed as civil
proceeding. Learned Counsel, however, contends that the authorities,
irrespective of whether they exercise, original, appellate or revisional 747
jurisdiction under the Sales-tax Act are not 'Courts' within the' contemplation
of S. 14(2) of the Limitation Act. It is pointed out that his question stands
concluded by this Court's decision in Jagannath Prasad v. State of U.P.(1) Mr.
Karkhanis is right that this matter is no longer res Integra. In Shrimti Ujjam
Bhai v. State of U.P.(2) Hidayatullah J. (as he hen was) speaking for the
Court, observed :
"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 of "State" in Article 12." The
above observations were quoted with approval by this Court Jagannath Prasad's
case (supra), and it was held that a Sales-tax officer under U.P. Sales-tax
Act, 1948 was not a Court within the meaning of S. 195 of the Code of Criminal
Procedure although he is required to perform certain quasijudicial functions.
The decision in jaganath Prasad's it seems, *as not brought to the notice of he
High Court. In view of these pronocements of this Court, here is no room for
argument that the Appellent-Authority and the 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.
Further question that remains is : Is the
general principle underlying S. 14 (2) applicable on grounds of Justice, equity
and good conscience for excluding the time spent in prosecuting the abortive
applications under Rule 68 (6) before the Appellate Authority., for computing
limitation for the purpose of revision applications. Mr. Karkhanis maintains
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 or by analogy. Learned Counsel further submits that the ratio
of the Privy Council decision in Ramdute Ramkissen Dass v. E. D. Sesson &
Co.(s) relied upon by the majority judgment of the High is not applicable for
computing limitation prescribed under the Sales-tax Act.
Reference in this connection has been made to
Purshottam Dass Hassaram v. Impex (India) Lid.(4) wherein a Division Bench of
the Bombay High Court explained the rule of decision in Ramdutt's case (supra)
and found it to be inapplicable for the purpose of computing limitation for applications
under the Arbitration Act, 1940.
(1) [1963] 2, S.C.R. 850. (2) [1963] 1,
S.C.R. 778.
(3) AlR 1929 P. C. 103, (4) A.I.R. 1954 Bom,
309 748 The material pail of s.10 runs thus :
"(3) (i). The Revision Authority.......
may, for the purpose of satisfying itself as to the legality or propriety of
any order made by any appellate or assessing authority under this Act, in its
discretion call for and examine, either on its own motion or on the application
of the Commissioner of gales-tax or the person aggrieved, the record of such
order and pass such order as it may think fit.
* * * * * * (3A).........
(3B) The application under sub-section (3)
shall be made within one year from the date of service of the order complained
of, but the Revising Authority may on proof of sufficient cause entertain an
application within a further period of six months." Three features of the
scheme of the above provision are noteworthy. The first is that no limitation
has been prescribed for the suo motu exercise of its jurisdiction by the
Revising Authority. The second is that the period of one year prescribed as,
limitation for filing an application for revision by the aggrieved party is
unusually long. The third is that the Revising Authority has no discretion to
extend this period beyond a further period of six months, even on sufficient
cause shown. As rightly pointed out in the minority judgment of the High Court,
pendency 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. 10 (3-B) of
the Sales-tax Act, gives no jurisdiction to the Revising Authority to extend
the limitation, even in such a case, for a further period of more than six
months.
The three star features of the scheme and
language of the above provision, unmistakably show that the legislature has
deliberately excluded the application of the principles underlying ss. 5 and.
14 of the Limitation Act, except to the extent and in the truncated form
embodied in sub-s. (313) 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 designed to, ensure
speedy and final determination of fiscal matters within a reasonably certain
time-schedule.
It cannot be said that-by excluding the
unrestricted application of the principles of ss. 5 and 14 of the Limitation
Act, the Legislature has made. the provisions of s. 10, unduly oppressive. In
most cases, the discretion to extend limitation, on sufficient cause being
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 conceivable where an aggrieved
party, despite sufficient cause, is unable to make an 749 application for
revision within this maximum period of 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.
Be that as it may, from the scheme and language
of S. 1 0, the intention of the Legislature to exclude the unrestricted
application of the principles of ss. 5 and 10 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. 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 legislature is the supreme law of the
land, and demands perfect obdience".(1) "Judicial power is never
exercised" said Marshall 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; or in other words, to the will of the
law".
If the legislature wilfully omits to
incorporate something of an 'analogous law in a subsequent statute, or even if
there is a casus omissus in a statute, the language of which is otherwise plain
and unambiguous, the Court is not competent to supply the omission by
engrafting on it or introducing in it, under the guise of interpretation, by
analogy or implication, something what it thinks to be a general principle of
justice and equity. To do so would be entrenching upon the preserves of
Legislatures, '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.
The ratio of the Privy Council decision in
Ramdutt Ramkissen Dass v. E. D. Sasson & Co. (Supra) relied upon by 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 long before the passage of the Indian Arbitration Act, 1940.
It lost its efficacy after the enactment of
the Arbitration Act which contained a specific provision in regard to exclusion
of time from computation of limitation.
The case in point is Purshottam Dass Hussaram
v. Index (India) Ltd. (supra). In this Bombay case, the question was, whether
the suit was barred by limitation. It was not disputed that Article 115 of 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 (i) see Maxwell on interpretation of
statutes, 11th Edn.,pp.l, 2 and 25l, 750 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.
On the authority of 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 of the Privy Council, the legislature had in s.
37(5) of the Arbitration Act, 1940, provided
as to what extent the provisions of the Limitation Act would be applicable to
the proceedings before the arbitrator.
Section 37(5) was as follows :
"Where the cow 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 respect to the difference referred,
the period between the commencement of the arbitration and the date of the
order of 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 respect to the difference referred." The reasons
advanced, the observations made and the rule enunciated by Chagla C.J., who
spoke for the Bench in that case, are opposite and may be extracted with
advantage "........ we have now a statutory provision for exclusion of
time taken up in arbitration Pr 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.
37(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 of the arbitration and
the date of this order is the period that has got to be excluded.
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 shows that the whole period referred to in...a, 49 Limitation Act is
not to be excluded but the limited'.. indicated in s. 37(5).
* * * * * * 751 "it may seem rather
curious-and it may also in certain cases result in hardship-as to why 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 no t intend
that parties should waste time infructuous proceedings before arbitrators. The
Iegislature 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)." What the learned Chief Justice said about the
inapplicability of s. 14, Limitation Act, in the context of s. 37(5) of the Arbitration
Act, holds good with added force with reference to s. 10 (3-B) of the Sales-tax
Act.
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 there under 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 limk 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.
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 without 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 law-giver; more so if the statute is a taxing statute. We will
close the discussion by recalling what Lord Hailsham (1) has said recently, in
regard to importation of the principles of natural justice into a statute which
is a clear and complete Code, by itself :
"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 (1)At P. 11 in Pearl Berg v. Varty [1972]
2 All E. R. 6, 752 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 theft to amend or supplement it with new
provisions so as to make it conform to that judgment." For all the reasons
aforesaid, we are of the opinion that the object, 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 proceedings for setting aside the dismissal of appeals in
default, from computation of the period of limitation prescribed for filing a
revision under the Sales-tax. Accordingly, we answer the question referred, in
the negative.
In the result, we set aside the judgment of
the High Court and accept these appeals. Since the appeals have been heard
ex-parte, there will be no order as to costs.
V.M.K.
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