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M/S HARI OIL MILL LALITPUR versus THE COMMISSIONER, TRADE TX, LUCKNOW

High Court of Judicature at Allahabad

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M/S Hari Oil Mill Lalitpur v. The Commissioner, Trade Tx, Lucknow - SALES/TRADE TAX REVISION No. 1102 of 2000 [2007] RD-AH 11255 (5 July 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                      RESERVED

Trade Tax Revision No.1102 of 2000

M/s. Hari Oil Mill   Vs.  The Commissioner, Trade Tax, U.P., Lucknow.

Hon'ble Prakash Krishna, J.

The present revision arises out of the proceedings under Section 4-A of the U.P. Trade Tax Act.  The applicant's case  is that it has established a new unit within the meaning of  Section 4-A for the purposes of manufacturing mustard oil in which Lakshman Prasad was one of the partners.  An application for grant of  eligibility certificate was filed before the Divisional Level Committee.  The said application was rejected by the Divisional Level Committee on the short ground that the  rent agreement filed by the applicant along with the application for grant of eligibility certificate was only in respect of 11 years while under the relevant provisions it should have been for a period of  15 years.  A copy of the said order has been annexed as Annexure-5 to the revision.  According to the applicant, he gave applications dated 26th of  March, 1996, 27th July, 1996 to the Divisional Level Committee informing them that there is no requirement of any such agreement as the applicant is the proprietor of the land in question  subsequently.  However, nothing was done on those applications, therefore, the applicant filed an application  dated 16th of October, 1996 titled as review application.  The said application was filed along with a fresh agreement dated 5.10.1996 for a period of  15 years.  The Divisional Level Committee  by the order dated 7.12.1999 rejected the review application on two grounds.   Earlier the rent agreement was only for 11 years and secondly, the review application was barred by time as it was not filed within 30 days from the date of order communicating rejection order of the application for grant of eligibility certificate.   Feeling aggrieved by the said order an appeal was filed before the tribunal.  The Tribunal by the impugned order dated 9.06.2000 rejected the appeal on the ground that indisputably the review application was filed before the concerned authority beyond 30 days i.e. beyond the prescribed period for filing a review application.

Heard the counsel for the parties and perused the record.  It is not in dispute that the order dated 6.2.1996 rejecting the application for grant of eligibility certificate was served on the applicant on 6th of  March, 1996.  It is also not in dispute that the review application under Rule 25 (c ) (3) can be filed within 30 days of the receipt of the information of the rejection.  In this view of the matter, the review application filed by the applicant on 16.10.1996 was clearly beyond the period of 30 days from 6th of  March, 1996.  

The learned counsel for the applicant urged that the Tribunal has committed illegality in not taking into account the earlier two applications filed by it  before the concerned Committee dated 26th of  March, 1996 and 26th of  July, 1996.  Copy of these applications have been annexed as Annexures 6 and 7 to the revision. Whether these applications were filed, is doubtful.  Except making a bald statement  that such  applications were filed, there is no corroborative material  in support thereof.  Moreover,  these applications have not been titled as review application.  However, that will not make much difference.   Even if these applications are taken on their face value, only this much has been stated by the applicant that the said partnership has been dissolved and the applicant being the owner of the land in question, there is no requirement of filing a registered lease deed for the period of  15 years.  The learned counsel for the applicant fairly accepted the position that when it applied for grant of the eligibility certificate, the applicant unit was a partnership Firm.  The learned counsel for the applicant very fairly stated that initially the partnership was formed on 23rd of August, 1990 which was dissolved in the month of  October, 1992. The applicant has been taking shifting and contradictory pleas and is not sure about his case.  It came forward that it was a partnership concern earlier.  Then subsequently  in his applications dated 26th of March, 1996 and 26th of July, 1996 it was stated that the applicant is a partnership concern  and as such  the applicant being owner of the land in question, no registered partnership  deed  is required for 15 years.  However,  when it filed the review application, giving rise to the present revision, it itself annexed a copy  of lease agreement  for 15 years.  This being the state of  affair, coupled with the fact that filing of applications dated 26th of March, 1996 and 26th of  July, 1996 do not find mention in the order of the Divisional Level Committee, the Divisional Level Committee rightly proceeded to take the application titled as review application as  the only application for review ignoring the earlier two applications dated 26th of March, 1996 and 26th of July, 1996.

Tribunal as well as the Divisional Level Committee rejected the review application filed by the applicant on the ground that it was filed beyond the prescribed period i.e. 30 days for filing of the review application.  To this extent there is no dispute by the dealer.  However, the contention of the applicant is that the period of 30 days prescribed for filing a review application before  the Divisional Level Committee by Rule 25 (3) (c) is directory.  Submission is that the said Rule has been enacted  to facilitate a dealer whose application for grant of eligibility certificate has been rejected to reapproach the Divisional Level Committee for redressal of his grievances.  In this regard, he has placed reliance upon the judgements of the Apex Court  in  Topline Shoes Limited Vs. Corporation Bank (2002) 6 SCC 33, Iridium TATA Telecom Ltd.  Vs. Motorola Inc. JT 2005 (1) SC 50  and  Mr. Shaikh Salim Haji Abdul Khayumsab  v.  Mr. Kumar & Ors.  JT 2005 (10) SC 1.

The learned standing counsel, on the other hand, submits that thirty days time prescribed for filing the review  is mandatory, otherwise the very object of providing remedy by way of review will be frustrated.   The rules also prescribes that an application for review,  shall be heard by the same Divisional Level Committee which heard the matter earlier.  The learned standing counsel submits that the Apex Court  in the case of   Commissioner of  Sales Tax U.P. Vs. Parson Tools and Plants 1975 UPTC  297  has held that maximum period prescribed by the Legislature for filing  the revision cannot be extended by computing the time of pendency of restoration application.  He submits that if the Legislature wilfully has prescribed a particular period of limitation for filing a review application, it is not open to this Court to interpret the said provision in a manner which may run counter to the intention of Legislature.  The language of Rule 25 (3) ( c) prescribing 30 days of  period of limitation is clear, plain and simple and no interpretation is called for.  

I have given careful consideration to the respective submissions of the learned counsel for the parties and of the opinion that the cases relied upon by the learned counsel for the applicant are distinguishable and have no application to the controversy involved in the case on hand.  Attempt of the applicant's counsel is to invoke  the principle akin to Section 5 of the Limitation Act indirectly .  The pith and substance of the argument of the learned counsel of the assessee is that in some cases it is possible that review application is not filed within 30 days from the date of  receipt and therefore the provision prescribing 30 days of period of limitation should be held directory, is difficult to accept.  The Apex Court in the case of  Polestar Electronic (P.) Ltd.  Vs.  Addl. Commissioner  1978 (41) STC 409  has held as follows:-

"Now, if there is one principle  of interpretation more well-settled than any other, it is that a statutory enactment must ordinarily be construed according to the plain natural meaning of its language and that no words should be added, altered or modified unless it is plainly necessary to do so  in order to prevent a provision from being unintelligible, absurd,  unreasonable, unworkable or totally irreconcilable with the rest of the statute.  This  rule of literal construction is firmly established and it has received judicial recognition in numerous cases.  Crawford in his book on  "Construction of Statutes" (1940 Ed.), at page 269, explains the rule in the following terms:

"Where the statute's meaning is clear  and explicit, words cannot be interpolated. In the first place, in such a case they are not needed.  If  they should be interpolated, the statute would more than likely fail to express the legislative intent, as the thought intended to be conveyed might be altered by the addition of new words. They should not be interpolated even though the remedy  of the statute would  thereby be advanced, or a more desirable or  just result would occur.  Even where the meaning of the statute is clear and sensible, either with or without the omitted word, interpolation is improper, since the primary source of the legislative intent is in the language of the statute."

Lord Parker applied the rule in R. v.  Oakes [(1959) 2 ALL E.R. 92)] to construe "and" as "or" in section 7 of the Official Secrets Act, 1920, and stated :

"It seems to this court that where the literal reading of a statute, and a penal statute, produces an intelligible  result, clearly there is no ground for reading in words or changing words according to what may be the supposed intention of Parliament.  But here we venture to think that the result is unintelligible."

Lord Reid also with great clarity and precision which always characterise his judgements enunciated the rule as follows in  Federal Steam Navigation Co.  Ltd.  v.  Department of  Trade and Industry [ (1974) 2 All E.R. 97]

"Cases where it has properly been held that a word can be struck out of a deed or statute  and another substituted can as far as I am aware be grouped  under three heads: where without such substitution the provision is unintelligible or absurd or totally irreconcilable with the plain intention shown by the rest of the deed or statute."

This rule in regard to reading words into a statute was also affirmed by this court in several decisions of which we may refer only to one, namely,  Narayanaswami  v.  Panneerselvam [ (1973) 1 S.C.R. 172)],  where  the court pointed out that :

"........................addition to, or modification of, words used in statutory provisions is generally not permissible..........",  but  " courts may depart from this rule to avoid a patent absurdity."

In the case on hand, the language of rule 25 (3) ( c ) is clear and explicit, effect must be  given to it for  in such a case the words best declare the intention of law giver.

Now coming to the judgement of   Topline Shoes Ltd. (supra) , it may be noted that the said decision proceeded on the footing that the intention to provide a time frame to file reply is really meant to expedite hearing of such matters and to avoid, unnecessary adjournments to linger on proceedings on the pretext of filing reply.  It was a case under the Consumer Protection Act wherein certain time limit was prescribed for filing reply and power was conferred to extend the period prescribed to a certain limit.  The reply was filed beyond the permissible limit of time. In this statutory set up Supreme Court has held that since no consequence is provided because the time granted to file reply exceeds  the total period of 45 days, it may, at the best said to be an irregular way of exercise of  discretion. Keeping in view the object of the Statute and taking it that no person should be condemned unheard, it was held that the time prescribed therein for filing reply is directory.  On a close reading of the aforesaid judgement, however, it is clear that the observations made therein were made in a different factual  and legal context. One of the consideration which weighed heavily was that no person should be condemned unheard. The court was not dealing with the situation whether time has been prescribed for seeking a remedy which was additionally provided to a person by way of review who was already heard in the matter.  Therefore, the observation made by the Apex Court in the case of  Topline Shoes Limited  are not germane with respect to a time limit prescribed for filing a review, revision or appeal.  For the same reason, the other two cases relied by the learned counsel for the applicant  have little relevance to the controversy presently involved.  It  was strenuously contended that all the rules of  procedure are the handmaid of justice. Particular emphasis was laid on para 11 of the judgement in the case of  Mr. Shaikh Saleem Haji Abdul Khayumsab (supra).  The relevant paragraphs 11 to 15 are reproduced below:-

"11. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice.

12. The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer.

13. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable. - Justice is the goal of jurisprudence - processual, as much as substantive. (See Sushil Kumar Sen v. State of Bihar (1975 (1) SCC 774). AIR 1975 SC1185

14. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. (See Blyth v. Blyth (1966 (1) All ER 524 (HL). A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. (See Shreenath and Anr. v. Rajesh and Ors. (AIR 1998 SC 1827). 1998 AIR SCW 1619

15. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice."

The manner of filing  of  appeal or a revision may be part of a procedural law but the right  conferred on a litigant to file an appeal is a substantive right and that right should be  and can be exercised within the period prescribed for filing of appeal or revision etc..  That is the reason that section 5 of the Limitation Act has been enacted which provides that on sufficient cause being shown delay in filing an appeal or application can be condoned by a court.

The next question arises for determination  as to whether the principle as enshrined in section 5 of the Limitation Act can be invoked in such proceedings or not.  It  need  not to be dealt with elaborately in view of direct judgement of the Apex Court in the case of  Commissioner of Sales Tax Vs. M/s. Parson Tools and Plants (supra).  The Apex Court examined  the various provisions  of U.P. Sales Tax Act and has held that the Sales Tax Authorities  exercising jurisdiction under the U.P. Sales tax Act are not courts, merely administrative tribunals.   Section 10 of the Act as it stood at the relevant point of time excluded the unrestricted  applications of the principle of  Section 5 and 14 of the Limitation Act, 1963 is manifestly clear.   These provisions of the Limitation Act which Legislature did not, after due application of mind, incorporated 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 overrules all others, is that the Statute is to be expounded "according to the intent of them that made it". The will of  legislature  is the supreme law of the land and demands perfect obedience" quoted from Maxwell on Interpretation of Statutes, 11th Edition.  It may be noted that the Apex Court in its earlier judgement in the case of  Polestar (supra)  has stated that the court is construing the statutory enactment, the intention of  legislature should be gathered  from the language used by it and it is not permissible to the court to speculate about the legislative intent.  Therein,  it has quoted a passage  from a judgement of Lord Watson, more than a century ago, as far back as in the year 1897 which is reproduced below:-

"The intention of the legislature is a common but very slippery  phrase, which, popularly understood, may signify anything  from  intention embodied in positive enactment to speculative  opinion  as to what the legislature probably would have meant, although there has been an omission to enact it.  In a court of  law or equity, what the legislature  intended to be done or not to be done can only be  legitimately  ascertained from what it has chosen to enact, either in express words or by reasonable and necessary implication.

The same view was echoed by Lord Raid in Black-Clawson  International Ltd.  v.  Papierwerke  Waldhof-Aschaffenburg  [(1975) 1 ALL E.R. 810 at 814]:

"We  often say that we are looking  for the intention of Parliament, but that is not quite accurate.  We  are seeking the meaning  of the words which Parliament used. We are seeking not what  Parliament  meant but the true meaning of what they said."

In view of the above discussion, it is difficult to agree with the submission of the counsel for the applicant that time prescribed for filing review application should be treated as directory and not mandatory.  The Tribunal, thus, committed no illegality in confirming the order passed by the Divisional Level Committee holding that the review application was filed beyond the prescribed period of  30 days as such it was not maintainable. There is no merit in the revision. The revision is dismissed.

But in the circumstances of the case,  no order as to costs.

Dt.05.7.07

LBY


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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