SAUBHAGYA MANJARI DEV Vs. UNION OF INDIA (UOI) AND ORS.
HIGH COURT OF ORISSA
Saubhagya Manjari Dev
UNION OF INDIA (UOI) AND ORS.
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H.L. Agarwal, C.J. -
(1.) ALL the three cases by the same Petitioner which raise the sa me question and arise out of a consolidated order dated 2 -9 -1980 (Annexure -3) passed by the Revenue Divisional Commissioner, Southern Division Berhampur (O. P. 4) have been heard together and are disposed of herewith. The question arising for consideration is as to what would be the law of limitation governing a party, i.e., whether that .in operation when the cause of action arose or what in force when the action was initiated. The assessing Officer had passed assessment orders under the Central Sales Tax Act, 1956 against the Petitioner for the periods ending 30 -9 -1957, 31 -12 -1957 and 31 -3 -1958 long back on 30 -8 -1960, 31 -12 -1960 and 31 -12 -1961 respectively raising demands for Rs. 1.697.86. Rs. 1,091.14 and Rs. 4,343.69.
(2.) SECTION 13 of the Orissa Sales Tax Act deals with payment ana recovery of tax and penalty and Sub -section (4) thereof reads thus:
(7) The amount which remains unpaid after the due date of payment in pursuance of the notice issued under Sub -section (4) or Sub -section (5) together with interest payable under Sub -section (6) shall be recoverable .as an arrear of public demand or in accordance with the provisions contained in the schedule. '' Section 13 -C was inserted in the Orissa, Sales Tax Act by Section 12 of Orissa Act 5 of 1984 with effect from 20th, January, 1964 prescribing a period of 12 years for initiating a proceeding for recovery of tax and reads as follows:
13 -C. Notwithstanding anything contained in any law for the time being in force no proceedings for the recovery of any amount under Sub -section (7) of Section 13 or under Sub -section (6) of Section 13 -A shall be initiated after the expiry of twelve years from the date of the relevant assessment.
Provided that when an appeal or application for revision or reference has been filed the period of limitation shall run from the date on which the amount due is finally determined.
In view of the aforesaid provision, the Petitioner on receipt of a notice in the certificate cases, inter alia, raised the question of limitation, but the Certificate Officer (O. P. 2) by his order dated 15 -3 -1976 (Annexure -1) rejected the plea of limitation along with the other pleas. Thereafter the Petitioner filed appeals and the appellate authority by his order dated 19 -2 -1977 (Annexure -2) accepted the plea of limitation and held that no action for recovery of the amount could be taken after the lapse of 12 years from the date of the assessment order as in view of Section 9 (2) of the Central Sales Tax Act, the provisions of the Orissa Sales Tax Act applied. O.P.I then took the matter in revision to the revisional authority who allowed the revisions on the view that Section 13 -C having been brought into the statute book in the year 1964. i.e., after the order of assessment, when in the district of Kalahandi the Central Provinces Land Revenue Act, 1917 was in force for recovery of public demands where 'there was no specific period of limitation for recovery of arrear of land revenue ', the general law of limitation. i.e. 30 years; was applicable. ''Therefore, on the date when the assessment order was made in the year 1960 -61.... '' since this amendment had no retrospective effect it stands to common sense that the limitation period of 12 years will run from 20 -1 -1964. Hence, the dues are not barred by limiation and, therefore, recoverable as public demand under the O. P. D. R. Act. '' The Petitioner has accordingly filed these applications challenging the aforesaid order.
It was submitted by Mr. Misra appearing for the Petitioner that the period of limitation provided under Section 13 -C of the Orissa Sales Tax Act would govern the right of the certificate -holder and since more than 12 years had elapsed, the proceedings could not have been initiated. Learned Addl. Govt. Advocate, on the other hand, tried to support the revisional order on the same said ground, namely that the period of limitation would be only that which was there at the time of the accrual of the cause of action, namely, the passing of the assessment orders. He also referred to Article 112 of the new Limitation Act (corresponding to Article 149 of the old Act) where the period of 30 years has been prescribed for any suit etc. by, or on behalf of the Central Government or any State Government.
(3.) RELIANCE placed on this Article is obviously misplaced as it only deals with suits by or on behalf of the Government and does not apply to execution proceedings. The legislature does not appear to have made any difference or distinction between a citizen and the Government so far as the execution proceedings are concerned and they have been treated at par. Article 136 of the Limitation Act now has fixed a clear 12 years limitation for execution of any decree after consolidating the Code of Civil Procedure and Articles 182 and 183 of the old Act. It was, however, submitted by the Addl. Govt. Advocate that on receipt of requisition if the Certificate Officer finds that the recovery of suit is not barred by law, he may sign a certificate and register the same. Therefore, for the Certificate Officer the relevant period of limitation for consideration would be where the demand in question could be recovered by institution of a suit and did not happen to be barred by any law. In other words, he submitted that since the period of 30 years is applicable for a suit by State, by implication the same period was available for realisation of the assessed amount.;
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