Walia Electronics vs Government Of Nct Of Delhi And Ors.
2004 Latest Caselaw 521 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. Rule. With the consent of parties, the matter is taken up for final disposal.

2. This petition is directed against the order of the Commissioner, Sales Tax dated 30.11.2000 whereby the petitioner's revision petition under Section 47 of the Delhi Sales Tax, 1975 (hereinafter referred to as "The DST Act") was rejected on the ground that it was time-barred. The entire issue before this Court relates to the question of condensation of delay and in particular whether Section 5 of the Limitation Act, 1963 applied in the case of a revision petition under Section 47 of the DST Act. The related issue is as to whether, if Section 5 of the Limitation Act applied, it was necessary that a formal written application seeking condensation of delay under Section 5 of the Limitation Act was necessary?

3. Only the procedural facts are of relevance in this petition. An assessment order for the year 1987-88 was made on 06.03.1992 in respect of the petitioner, who is a registered dealer under the DST Act. Being aggrieved by the assessment order, the petitioner preferred an appeal before the Additional Commissioner of Sales Tax on 30.11.1992. The petitioner was required to make a pre-deposit of a sum of Rs. 65,000/- Along with security of Rs. 75,000/- by 30.12.1992 as a condition for hearing the appeal on merits. As the petitioner failed to make the pre-deposit by 30.12.1992, the appeal was dismissed in liming on 03.03.1993. On 31.03.1993, the petitioner filed a revision application under Section 47 of the DST Act in respect of the assessment order dated 06.03.1992. The revision application was dismissed on 21.03.1994 as being not maintainable in view of the fact that the provision of appeal against the assessment order dated 06.03.1992 had been availed of as aforesaid. A review petition under Section 48(6) of the DST Act seeking a review of the said order dated 21.03.1994 was filed on 24.05.1994 and which came to be dismissed by the Additional Commissioner on 10.04.1995. Thereafter, on 21.04.1995, the petitioner filed a revision application under Section 47 of the DST Act in respect of the order dated 03.03.1993 whereby the petitioner's appeal against the assessment order of 06.03.1992 had been dismissed in liming for non-compliance of the condition of pre-deposit. This revision petition was disposed of by the Commissioner, Sales Tax on 30.11.2000 on the ground that it was time-barred as the same had been filed beyond the period of two years provided for in Section 47 of the DST Act. This is the order which is impugned in the present petition.

4. In the impugned order dated 30.11.2000, it has been specifically recorded as under:-

"It has not been disputed by the parties that the present revision petition has been filed after the expiry of two years provided for under the aforesaid section. It is also a fact that till the date of final hearing took place on this revision petition on 30/5/2000, the petitioner dealer has not filed any application for condensation of delay under Section 5 of the Limitation Act and that an application for condensation of delay in filing the revision petition late has been filed by the Ld. Counsel for the petitioner dealer only on 2/6/2000 in the dak. In this application, it has been stated that there is a delay of around 46 days in filing the revision petition because although, the order dated 3.3.93 of the Ld. Then Additional Commissioner of Sales Tax dismissing his appeal in liming was received by him on 10.3.93 yet, the revision petition in question has been filed on 25.4.95 and the delay is due to the reason that the petitioner had perused the alternative remedy of first filing the revision petition and then the review petition before the Ld. then Addl. Commissioner under legal advice of his Counsel and that in this pursuit, the time between 31.3.93 to 7.4.95 was consumed without any default of the petitioner who all along was acting under the bonafide legal advice of a qualified advocate. It has also been stated in this application that the condition of pre-deposit of Rs.65,000/- has already been complied with and the surety for the amount of Rs.70,000/- can be filed at any time and that this Court has full powers to condone the delay in the light of the ruling at any time?..."

It is further noted in the impugned order as under:-

"Moreover, surprisingly, it is also noticed that the Ld. Counsel for the petitioner has also mentioned in this application that a verbal request for condensation of delay was made by him because unfortunately no application for this purpose was filed along with the revision petition and that as directed, the formal application had been filed later on whereas the bare truth is that neither any request for condensation of delay in this case was ever made by the Ld. counsel for the petitioner during the course of hearing of the case on the point of limitation nor as alleged by him in this application, he was never directed by anybody including the undersigned to file a formal application even up to the time, when the case was heard and kept for orders by the undersigned on 30.5.2000."

5. The Commissioner, Sales Tax by an impugned order dated 30.11.2000 came to the conclusion that the applicability of Section 5 of the Limitation Act, 1963 has been excluded and as such the delay beyond two years cannot be condoned. The Commissioner also held that even the grounds mentioned in the condensation of delay application filed by the petitioner after conclusion of the proceedings before him were not efficacious enough to call for condensation of delay in the case in hand. It was also held that, in any event, as the petitioner had not filed any application for condensation of delay under Section 5 of the Limitation Act, 1963 Along with the revision petition filed before him under Section 47 of the DST Act on 28.04.1995, the petitioner had no case and that the revision petition was time-barred. The aforesaid facts disclose that although the Commissioner held that Section 5 of the Limitation Act would not be applicable in the case of a revision petition under Section 47 of the DST Act, he did examine the contents of the belated application under Section 5 of the Limitation Act and held that no case for condensation of delay had been made out even on the basis of the averments contained therein. Thus, it does appear that even assuming that Section 5 of the Limitation Act is, in fact, applicable for considering the question of condensation of delay when a revision petition under Section 47 of the DST Act is filed, the Commissioner, Sales Tax, in this case, has also considered the merits of the application under Section 5 (albeit belated) filed by the petitioner. Thus, there is a finding recorded by the Commissioner, Sales Tax to the effect that sufficient cause for condoning the delay had not been made out. This means that even if it were to be held that Section 5 of the Limitation Act was applicable, on facts, a case for condensation of delay had not been made out.

6. The High Court in exercise of its jurisdiction under Articles 226 and 227 f the Constitution of India does not sit as an Appellate Court and ought not to substitute its views in place of those of the inferior tribunals or authorities. The relief under Articles 226 or 227 of the Constitution is a discretionary one. In the present case, we find that there is no need to examine the question of applicability of Section 5 of the Limitation Act to a revision petition under Section 47 of the DST Act. This is so because the Commissioner, Sales Tax in the impugned order has, on facts, rejected the prayer for condensation of delay. Therefore, we find that this is not an appropriate case in which the question of applicability of Section 5 of the Limitation Act or otherwise to a revision petition under Section 47 of the DST Act falls for our determination. We leave that question open.

7. We may, at this juncture, note that in respect of a reference application under Section 45(1) of the DST Act, we have today itself in the case of Pranam Enterprises v. Commissioner of Sales Tax & Ors: [WP(C) 5170/2003] held that the applicability of Section 5 of the Limitation Act, 1963 was expressly excluded and particularly so by the proviso to Section 45(1) of the DST Act. The provisions of Section 45(1) and Section 47 of the DST Act are apparently different and, therefore, the same principles may not be applicable in the case of a revision petition under Section 47 of the DST Act. However, as aforesaid, we are not touching upon that aspect of the matter, as we are not required to do so in the present petition.

8. In the facts and circumstances of the case and in view of the aforesaid discussion, we feel that there is no merit in the case and, therefore, the writ petition is dismissed. Rule is discharged. There shall be no order as to costs.