The Supreme Court has reiterated that the power to condone delay under Section 5 of the Limitation Act is applicable to proceedings under special or local laws if it is not expressly excluded by such laws.
Applying this principle, the bench comprising Justices Arun Mishra, M R Shah and BR Gavai held that Section 5 of the Limitation Act can be invoked to condone the delay in filing revision to the High Court under Section 48 of the Himachal Pradesh Value Added Tax Act.
In this case (Superintending Engineer, Dehar Power Circle, Bhakra Beas Management Board (PW) Slapper and another Vs Excise and Taxation Officer), the Supreme Court was considering an appeal against a judgment of the Himachal Pradesh High Court which had held that held that Section 5 of the Limitation Act cannot be invoked to condone the delay in filing revision under Section 48 of the HP VAT Act.
The HC held that the language contained in Section 48 excludes the applicability of Section 5 of the Limitation Act. It was further held that the Court cannot exercise its inherent powers to condone the delay.
While considering the appeal against this judgment, the Supreme Court at the outset referred to Section 29 of the Limitation Act, which states that Sections 4 to 24 of the Limitation Act will apply in respect of any suit, appeal or application under any special law or local law to the extent to which, they are not expressly excluded by such special or local law
In Patel Brothers v. State of Assam & Ors., 2017 (2) SCC 350, the SC had held that even in the absence of express exclusion of the provisions of the Limitation Act, it is open to a court to consider implied exclusion. This case was in respect of proceedings under the Assam VAT Act, where there was a specific provision - Section 84 - which stated that only Sections 4 and 12 of the Limitation Act were applicable to proceedings under it. Hence, the Supreme Court had held that other provisions of the Limitation Act were excluded by the Assam VAT Act.
The Himachal Pradesh HC had relied on the precedent in Patel Brothers to hold that Section 5 Limitation Act was not applicable to HP VAT Act.
The Supreme Court however distinguished Patel Brothers case pointing out that it was based on Section 84 of the Assam VAT Act which had the effect of excluding Section 5 of the Limitation Act. Such a provision was not present in the HP VAT Act.
"The provisions of section 5 are applicable to Section 48 as they are not expressly excluded by the provisions under the Act of 2005. More so, in view of the provisions in section 45(4), which makes provisions to condone the delay like the Limitation Act, conferring power upon an authority also to condone delay. Further, suo motu revision has also been provided under section 46. In section 48, there is no express exclusion. Because of the scheme of the Act, it cannot be inferred that by implication, the provisions of section 5 of the Limitation Act are excluded. Provisions contained in section 29(2) of the Limitation Act would be attracted as there is no express exclusion or by implication, in view of the provisions of the Act of 2005. We hold that by virtue of the provisions contained in section 29(2), provisions of section 5 of the Limitation Act would apply to proceedings under Section 48 of the Act of 2005", held the Court.
"as per section 29(2), unless a special law expressly excludes the provision, sections 4 to 24 of the Limitation Act are applicable. When we consider the scheme of the Himachal Pradesh VAT Act, 2005, it is apparent that its scheme is not ousting the provisions of the Limitation Act from its ken which makes principles of section 5 applicable even to an authority in the matter of filing an appeal but for the said provision the authority would not have the power to condone the delay. By implication also, it is apparent that the provisions of Section 5 of the Limitation Act have not been ousted; they have the play for condoning the limitation under Section 48 of the Act of 2005". added the Court.
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