RAGHUNATH AGARWALLA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE assessee is before us praying for a writ of certiorari to quash the order dated 14th July, 1973, passed by the Member, Additional Sales Tax Tribunal, Orissa, in Reference Application No. 3 of 1973-74 filed under section 24 (1) of the Orissa Sales Tax Act (hereinafter referred to as the "act" ).

(2.) SECOND Appeal No. 1091 of 1971-72 carried by the assessee under section 23 (3) of the Act was disposed of by the Additional Tribunal on 12th January, 1973. On 15th March, 1973, copies of the second appellate order were served on the Commissioner of Sales Tax as required under rule 73 of the Orissa Sales Tax Rules (hereinafter called the "rules" ). Under section 24 (1) of the Act, within sixty days from the date of receipt of the copy of the order of the Tribunal made under sub-section (3) of section 23 affecting any liability of any dealer to pay tax, such dealer or, as the case may be, the State Government, is entitled to make an application in writing to the Tribunal to refer to the High Court any question of law arising out of the appellate order. According to the petitioner, the application under section 24 (1) of the Act was due to be filed on or before 14th May, 1973, but it was actually filed on 30th May, 1973, along with an application for condonation of delay under section 5 of the Limitation Act, 1963. The impugned order runs thus :

(3.) NEXT is the case of Vasanji Ghela and Co. v. State of Maharashtra ([1968] 22 S. T. C. 104 ). A Bench of the Bombay High Court was examining the applicability of section 5 of the Limitation Act in view of the amended provision in section 29 (2) thereof. The court referred to several decisions. One of those was that of the Supreme Court in the case of Vidyacharan v. Khubchand (A. I. R. 1964 S. C. 1099), where with reference to the appeal under the Representation of the People Act, the scope of section 29 (2) of the Limitation Act was examined. They also referred to the decision of their own court in the case of Employees' State Insurance Corporation v. Bharat Barrel ( (1967) 69 Bom. L. R. 52 ). The earlier Division Bench of the Bombay High Court took the view that an application filed under the Employees' State Insurance Act, in the absence of a period of limitation, would be governed by article 137 of the Limitation Act by virtue of section 29 (2) of the new Limitation Act. Relying on these authorities, the Division Bench took the view that section 5 of the Limitation Act stood extended to a reference application under the Bombay Sales Tax Act. We may also refer to a Bench decision of the Calcutta High Court not cited by counsel for parties in the case of Sunit Pramanik v. Santipur Industries Co-operative Society (A. I. R. 1973 Cal. 364 ). The point for examination before the court was the application of the provisions of the Limitation Act to an appeal under the Bengal Co-operative Societies Act through the medium of section 29 (2) of the Limitation Act of 1963. The court concluded :