C.W.P. No.18613 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No.18613 of 2009 Date of decision: 08.02.2010 Lord Krishna Flour Mills Pvt. Ltd. ............Petitioner Versus The State of Haryana and others ..........Respondents CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Sandeep Goel, Advocate for the petitioner. Ms. Ritu Bahri, Sr. DAG, Haryana. ALOK SINGH, J. 1. The present petition has been filed invoking jurisdiction of this Court under Article 226 of the Constitution of India seeking writ of certiorari quashing the orders (Annexures P-11 and P-12) both dated 14.9.2009 dismissing the reference application and review application filed by the petitioner on the C.W.P. No.18613 of 2009 -2- ground of limitation. 2. The brief facts of the present case are that petitioner company was granted exemption certificate by the department of Sales Tax vide order dated 11.4.1991 showing the amount of exemption for the period from 8.10.1990 to 7.10.1999. Due to certain adverse conditions petitioner company suffered losses and ultimately petitioner company was taken over by the Haryana Financial Corporation on 9.12.2000. The Sales Tax department issued show cause notice under Rule 28-A(11)(b) of the Haryana General Sales Tax Rules. According to the DETC, the petitioner had failed to maintain its production at the average level of preceding 5 years after having availed benefit of exemption and therefore it is liable to make good the tax benefit availed by it alongwith interest. The petitioner was asked to show cause as to why necessary action be not taken under the Rules. Eventually, the learned DETC passed an order dated 14.9.2001 under Rule 28-A(11) and asked the petitioner to make the payment of full amount of tax benefit availed of by it during the period of exemption alongwith interest under the Act as if no exemption was ever available to it. 3. Feeling aggrieved from the order dated 14.9.2001, an appeal was preferred. However, Ist Appellate authority dismissed the appeal vide order dated 17.9.2002. Against the order dated 17.9.2002 of the Ist Appellate authority an appeal was preferred before the Tribunal which was eventually decided on 27.8.2004. However, copy of the order dated 27.8.2004 was C.W.P. No.18613 of 2009 -3- supplied to the petitioner on 20.9.2004. Last date for reference was 19.11.2004, however, a review petition was filed before the Tribunal on 8.11.2004 vide Annexure P-6. After issuing notice to the respondent State, the review petition was eventually dismissed on 16.2.2006 after hearing both the sides. Review petition was challenged by the petitioner company before this Court by way of CWP No.11269 of 2006. CWP No.11269 of 2006 came up for hearing and objection was raised by the department that remedy of reference was available under Section 42 of the Haryana General Sales Tax Act, 1973. Petitioner sought permission to withdraw the writ petition with liberty to avail the remedy of reference which was permitted to be withdrawn with liberty to avail the remedy of reference vide order dated 16.03.2009. Thereafter, reference was made before the Haryana Tax Tribunal on 29.04.2009 vide Annexure P-10 alongwith the application seeking condonation of delay. However, the same was dismissed and review application was also dismissed vide impugned orders. Hence, both the orders are being assailed by way of present writ petition. 4. We have heard learned Counsel for the parties and perused the record. 5. Learned Counsel appearing for the respondents vehemently argued that Haryana Tax Tribunal has passed order on 27.8.2004 and in any case it was communicated to the petitioner assessee on 20.9.2004, hence, reference could have been made within 60 days which would have expired on C.W.P. No.18613 of 2009 -4- 19.11.2004. Hence, petitioner cannot take any advantage of filing review application and thereafter writ petition before this Court and is not entitled for any condonation of delay. 6. Undisputedly, application under Section 42(1) of the Haryana General Sales Tax Act for seeking reference of question of law to the High Court is a statutory remedy for which limitation prescribed is 60 days from the date of the order passed by the Tribunal in the appeal. 7. Section 14 of the Limitation Act reads as under:- “Exclusion of time of proceeding bona fide in Court without jurisdiction:- 1. In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. 2. In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same C.W.P. No.18613 of 2009 -5- party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. 3. Nothwithstanding anything contained in rule 2 of Order XXXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature. Explanation:- For the purposes of this Section, - a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.” 8. From the bare perusal of Section 14 of the Limitation Act, it can safely be said that the period consume in prosecuting C.W.P. No.18613 of 2009 -6- the proceeding with due diligence in a Court shall be excluded for the purpose of counting the limitation for invoking jurisdiction of Court or Tribunal having jurisdiction over the matter. If any Court finds that person, seeking condonation of delay, was bona fidely prosecuting with due diligence, a cause before the Court or Tribunal which ought to have been filed before the competent Court or Tribunal having jurisdiction, then period consumed in wrong Forum shall be deducted or benefit thereof shall be granted for the purpose of condonation of delay. 9. Undisputedly, after the dismissal of the appeal by the Tribunal, petitioner filed review application before the Tribunal under Section 41 of the Haryana General Sales Tax Act, 1973 which could have been filed within one year from the date of the order to be reviewed and which was admittedly filed within the time. However, review was dismissed vide order dated 16.2.2006. Thereafter, writ petition was preferred before this Court. Writ petition was permitted to be withdrawn with liberty to avail remedy of reference vide order dated 16.3.2009. Thereafter application for making reference was moved promptly on 29.4.2009. 10. In view of the above, we are of the opinion that delay in filing the reference application ought to have been condoned keeping in mind the principles of Section 14 of Limitation Act. Learned Tribunal took hyper technical view which would mean denial of the remedy which he otherwise would have. 11. We are of the view that delay in filing the reference C.W.P. No.18613 of 2009 -7- application is liable to be condoned. Hence, the same is condoned. Orders impugned Annexures P-11 and P-12 in the writ petition are quashed. 12. The writ petition is allowed. No order as to costs. (ALOK SINGH) JUDGE (ADARSH KUMAR GOEL) 08.02.2010 JUDGE ashish