K GANESH Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THESE petitions are to condone the delay of 211 days in filing the tax case revisions. The revision petitions are sought to be filed as against the order of the Sales Tax Appellate Tribunal, Coimbatore , dated 29th March, 1986. The revision petitions were filed under section 38 of the tamil Nadu General Sales Tax Act, 1959. Sub-section (1) of that section provides that within ninety days from the date on which a copy of the order under sub-section (3) or sub-section (6) of section 36 is served in the manner prescribed, any person who objects to such order or the deputy Commissioner may prefer a petition to the High Court on the ground that the Appellate Tribunal has either decided erroneously or failed to decide any question of law. The proviso to this section as it was originally enacted in 1959, read as follows: "provided that the High Court may admit a petition preferred after the period of ninety days aforesaid if it is satisfied that the petitioner had sufficient cause for not preferring the petition within the said period. &quot ; * Calculating the period of ninety days as provided under the Tamil Nadu General Sales Tax Act, 1959, and the provisions of the Limitation Act, the last date for filing the revision petition was 28th July, 1986. However, the revisions were filed only on 24th february, 1987 with petitions to condone the delay of 211 days in filing the revision petitions.

(2.) AT the time when the Tamil Nadu General Sales Tax Act, 1959 was enacted, the Indian Limitation Act, 1908 was in force. Section 29 of that Limitation Act provided that : "where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law - (a)the provisions contained in sections, 4, 9 to 18 and 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply. " * Therefore, section 5 of the Limitation Act was not applicable to appeals preferred under section 38 of the Tamil Nadu General Sales Tax Act, 1959. Section 38, proviso, which we have extracted above enabled the High Court to excuse the delay in filing the petition even if it was preferred after the period of ninety days provided under sub-section (1 ). After the Limitation Act, 1963 was enacted, section 29 (2) was recast and it now stands : "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. " * Thus, under the Indian Limitation Act, 1908, the applicability of section 5 to any proceedings under special or local law was specifically excluded, but under the Limitation Act, 1963, unless the special or local law specifically excludes the application of section 5, it would be applicable to these proceedings under the special or local law. Therefore, after the amendment, the proviso to section 38 of the Tamil Nadu General Sales Tax Act, 1959, as it existed become otiose, as admittedly section 38 is a special or local law within the meaning of section 29 of the Limitation act. By the Tamil Nadu General Sales Tax (Eighth amendment) Act of 1986 which came into force on 15th December, 1986, the proviso to section 38 was amended and as amended the proviso now reads : "provided that the High Court may within a further period of forty-five days, admit a petition preferred after the expiration of the said period of ninety days, if it is satisfied that the petitioner had sufficient cause for not preferring the petition within the said period. " * Section 29 of the Limitation Act, 1963 as we have noted already specifically provided that sections 4 to 24 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. The question for consideration, therefore, is whether the proviso, as amended by the Tamil Nadu Act 76 of 1986, can be said to be an express exclusion of section 5 of the limitation Act"