Chikkabasavaraju Vs. the State of Karnataka, Rep. by the Secretary to Government Revenue Department, Bangalore and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/953293
CourtKarnataka High Court
Decided OnMar-26-2013
Case NumberWrit Petition Nos. 2174 of 2013 (T-RES) & 14216 & 14426 of 2013 c/w Writ Petition No. 2175 of 2013(T-KST)
Judge RAM MOHAN REDDY
AppellantChikkabasavaraju
RespondentThe State of Karnataka, Rep. by the Secretary to Government Revenue Department, Bangalore and Others
Excerpt:
(prayer: these writ petitions are filed under articles 226 and 227 of the constitution of india praying to quash the orders dt. 9/1/2007, 9/1/2008 vide annex.b and 18/4/2012 vide annex.c passed by assessing commissioner of commercial taxes mandya circle (transit), joint commissioner of commercial taxes, mysore division, mysore and karnataka appellate court vide annex.a to c; and etc.) 1. since common questions of law and that of fact arise for decision making, with the consent of learned counsel for the parties, petitions are clubbed together, finally heard and are disposed of by this order. 2. the core question for decision making is, whether the karnataka appellate tribunal was justified in dismissing sta nos. 1844 and 1845 of 2011 on the premise of having been filed after the expiry of the period of 60 days and a further period of 180 days prescribed by sub-sec.2 of sec.22 of the karnataka sales tax act, 1957, for short 'act', and therefore had no jurisdiction to treat within the limitation, an application filed before it beyond such maximum time limit? 3. it cannot be denied that appellant failed to register under the act, despite obtaining a license to quarry sand, during the financial year 2001-02 and failed to pay the taxes, leading to an order dt. 9/1/2007 - annex.a of assessment, called in question in an appeal before the joint commissioner, whence by order dt. 9/1/2008 - annex.b, was dismissed confirming the order of the assessing authority. petitioner preferred a second appeal to the karnataka appellate tribunal, for short 'kat', on 4/8/2011, though acknowledged receipt of a copy of annex.b on 4/2/2008. kat observed that sub-sec.2 of sec.22 prescribed a period of limitation of 60 days for filing an appeal, and a further period of 180 days, subject to satisfactory explanation over the delay. petitioner having filed the appeals beyond the period of 60 days and a further period of 180 days, the kat held, had no jurisdiction to condone the delay and entertain the appeal and accordingly dismissed the appeal by the order dt. 18/4/2012 - annex.c. hence these petitions. 4. sec.22(2) of the act reads thus: sec.22(2) the appellate tribunal may admit an appeal preferred after the period of sixty days referred to in sub-section (1) but within a further period of one hundred and eighty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within that period. 5. the act is a special statute prescribing a period of limitation for filing an appeal before the kat and provides in clear terms that such period, on sufficient cause being shown, may be extended in the maximum only upto 60 + 180 days and no further, where afterwards the kat would have no jurisdiction to treat within limitation, an application filed before it beyond such maximum time. the legislature having clearly declared its intention in the scheme and in the act, it is needless to state that it is the duty of the courts to give effect to the same, more so since the act is a taxing statute. 6. the kat being a creator of the statute vested with jurisdiction to condone the delay within the permissible period provided under the act, can therefore entertain an application to condone the delay within that period. sub-sec.2 of sec.22 of the act, having made the position clear that an appeal has to be preferred within 60 days from the date of communication of the decision or order and that if the kat is satisfied that the appellant was prevented by sufficient cause in presenting the appeal within the aforesaid period of 60 days, can allow it to be presented within a further period of 180 days, the legislature intended the appellate authority to entertain the appeal by condoning the delay only upto 180 days. therefore there is complete exclusion of the application of sec.5 of the limitation act, 1963. 7. the view taken supra is supported by the following reported opinions: (a) in the commissioner of sales tax, uttar pradesh, lucknow vs. m/s. parson tools and plants, kanpur (air 1975 sc 1039), it is observed thus: "if the legislature willfully 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 the legislature, the primary function of a court of law being jus dicere and not jus dare. the high court therefore was in error in importing whole hog the principle of section 14(2) of the limitation act into s.10 (3-b) of the u.p. sales-tax act. x x x x x ". (b) in singh enterprises vs. commissioner of central excise, jamshedpur and others (2008 [3] scc 70), the apex court having regard to sec.35 and the proviso therein to the central excise act, 1944, prescribing a period of 60 days in preferring an appeal and a further period of 30 days subject to satisfactory explanation to condone the delay, observed that there is complete exclusion of sec.5 of the limitation act, 1963. (c) in commissioner of customs and central excise vs. hongo india (p) ltd. and another([2009] 24 vst 298 [sc]), regard being had to sec.35g and 35h of the central excise act, 1944, providing for the filing of an appeal and a reference to the high court within 180 days from the date of communication of the decision or order and the language used in the other provisions ie., sec.35, 35b and 35e, observed that the legislature intended the appeal/revisional authority to entertain an appeal/revision by condoning the delay after expiry of the preliminary period for preferring an appeal and that the absence of any clause in sec.35h providing for condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of sec.5 of the limitation act, 1963. in addition it was observed that the high courts in india have inherent and plenary powers and as courts of record have unlimited jurisdiction including the jurisdiction to determine their own powers, does not mean that inspite of specific statutory provisions under the central excise act, 1944, the high court would be free to entertain reference applications even after the prescribed period of 180 days. 8. in the light of the well established principles of law and the statutory provisions under the act, no exception can be taken to the reasons, findings and conclusions arrived at by the kat in the order impugned, calling for interference. petitions without merit, are rejected.
Judgment:

(Prayer: These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the orders Dt. 9/1/2007, 9/1/2008 vide Annex.B and 18/4/2012 vide Annex.C passed by Assessing Commissioner of Commercial Taxes Mandya Circle (Transit), Joint Commissioner of Commercial Taxes, Mysore Division, Mysore and Karnataka Appellate Court vide Annex.A To C; and Etc.)

1. Since common questions of law and that of fact arise for decision making, with the consent of learned counsel for the parties, petitions are clubbed together, finally heard and are disposed of by this order.

2. The core question for decision making is, whether the Karnataka Appellate Tribunal was justified in dismissing STA Nos. 1844 and 1845 of 2011 on the premise of having been filed after the expiry of the period of 60 days and a further period of 180 days prescribed by Sub-sec.2 of Sec.22 of the Karnataka Sales Tax Act, 1957, for short 'Act', and therefore had no jurisdiction to treat within the limitation, an application filed before it beyond such maximum time limit?

3. It cannot be denied that appellant failed to register under the Act, despite obtaining a license to quarry sand, during the financial year 2001-02 and failed to pay the taxes, leading to an order dt. 9/1/2007 - Annex.A of assessment, called in question in an appeal before the Joint Commissioner, whence by order dt. 9/1/2008 - Annex.B, was dismissed confirming the order of the Assessing Authority. Petitioner preferred a Second Appeal to the Karnataka Appellate Tribunal, for short 'KAT', on 4/8/2011, though acknowledged receipt of a copy of Annex.B on 4/2/2008. KAT observed that Sub-sec.2 of Sec.22 prescribed a period of limitation of 60 days for filing an appeal, and a further period of 180 days, subject to satisfactory explanation over the delay. Petitioner having filed the appeals beyond the period of 60 days and a further period of 180 days, the KAT held, had no jurisdiction to condone the delay and entertain the appeal and accordingly dismissed the appeal by the order dt. 18/4/2012 - Annex.C. Hence these petitions.

4. Sec.22(2) of the Act reads thus:

Sec.22(2) The Appellate Tribunal may admit an appeal preferred after the period of sixty days referred to in sub-section (1) but within a further period of one hundred and eighty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within that period.

5. The Act is a special statute prescribing a period of limitation for filing an appeal before the KAT and provides in clear terms that such period, on sufficient cause being shown, may be extended in the maximum only upto 60 + 180 days and no further, where afterwards the KAT would have no jurisdiction to treat within limitation, an application filed before it beyond such maximum time. The legislature having clearly declared its intention in the scheme and in the Act, it is needless to state that it is the duty of the courts to give effect to the same, more so since the Act is a taxing statute.

6. The KAT being a creator of the statute vested with jurisdiction to condone the delay within the permissible period provided under the Act, can therefore entertain an application to condone the delay within that period. Sub-sec.2 of Sec.22 of the Act, having made the position clear that an appeal has to be preferred within 60 days from the date of communication of the decision or order and that if the KAT is satisfied that the appellant was prevented by sufficient cause in presenting the appeal within the aforesaid period of 60 days, can allow it to be presented within a further period of 180 days, the legislature intended the appellate authority to entertain the appeal by condoning the delay only upto 180 days. Therefore there is complete exclusion of the application of Sec.5 of the Limitation Act, 1963.

7. The view taken supra is supported by the following reported opinions:

(a) In THE COMMISSIONER OF SALES TAX, UTTAR PRADESH, LUCKNOW VS. M/S. PARSON TOOLS AND PLANTS, KANPUR (AIR 1975 SC 1039), it is observed thus:

"If the legislature willfully 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 the Legislature, the primary function of a Court of law being jus dicere and not jus dare. The High Court therefore was in error in importing whole hog the principle of Section 14(2) of the Limitation Act into S.10 (3-B) of the U.P. Sales-Tax Act. x x x x x ".

(b) In SINGH ENTERPRISES VS. COMMISSIONER OF CENTRAL EXCISE, JAMSHEDPUR and OTHERS (2008 [3] SCC 70), the Apex Court having regard to Sec.35 and the proviso therein to the Central Excise Act, 1944, prescribing a period of 60 days in preferring an appeal and a further period of 30 days subject to satisfactory explanation to condone the delay, observed that there is complete exclusion of Sec.5 of the Limitation Act, 1963.

(c) In COMMISSIONER OF CUSTOMS and CENTRAL EXCISE VS. HONGO INDIA (P) LTD. and ANOTHER([2009] 24 VST 298 [SC]), regard being had to Sec.35G and 35H of the Central Excise Act, 1944, providing for the filing of an appeal and a reference to the High Court within 180 days from the date of communication of the decision or order and the language used in the other provisions ie., Sec.35, 35B and 35E, observed that the legislature intended the appeal/revisional authority to entertain an appeal/revision by condoning the delay after expiry of the preliminary period for preferring an appeal and that the absence of any clause in Sec.35H providing for condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Sec.5 of the Limitation Act, 1963. In addition it was observed that the High Courts in India have inherent and plenary powers and as courts of record have unlimited jurisdiction including the jurisdiction to determine their own powers, does not mean that inspite of specific statutory provisions under the Central Excise Act, 1944, the High Court would be free to entertain reference applications even after the prescribed period of 180 days.

8. In the light of the well established principles of law and the statutory provisions under the Act, no exception can be taken to the reasons, findings and conclusions arrived at by the KAT in the order impugned, calling for interference.

Petitions without merit, are rejected.