|CORAM:||Chief Justice, L. Nageswara Rao J, Surya Kant J|
|GENRE:||Domestic Tax, Other Laws|
|CATCH WORDS:||Condonation of delay, limitation period|
|COUNSEL:||Dushyant Dave, Tushar Mehta|
|DATE:||March 23, 2020 (Date of pronouncement)|
|DATE:||March 23, 2020 (Date of publication)|
|FILE:||Click here to download the file in pdf format|
|Extension of limitation period: To obviate difficulties caused by CoronaVirus in filing petitions/ applications/ suits/ appeals/ all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State) , it is ordered that the period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws, whether condonable or not, shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings|
ITEM NO.12 COURT NO.1 SECTION PIL-W
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
SUO MOTU WRIT PETITION (CIVIL) No(s).3/2020
IN RE : COGNIZANCE FOR EXTENSION OF LIMITATION
Date : 23-03-2020 This petition was taken up suo motu for hearing
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE L. NAGESWARA RAO
HON’BLE MR. JUSTICE SURYA KANT
By Courts Motion
Mr. Tushar Mehta, SG
Ms. Swati Ghildiyal, Adv.
Mr. Ankur Talwar, Adv.
Mr. G.S. Makkar, Adv.
Mr. Raj Bahadur, Adv.
Mr. B.V. Balaram Das, AOR
Mr. Dushyant Dave, Sr. Adv.
UPON hearing the counsel the Court made the following
O R D E R
This Court has taken Suo Motu cognizance of the situation
arising out of the challenge faced by the country on account of
Covid-19 Virus and resultant difficulties that may be faced by
litigants across the country in filing their
petitions/ applications/ suits/ appeals/all other proceedings within
the period of limitation prescribed under the general law of
limitation or under Special Laws (both Central and/or State).
To obviate such difficulties and to ensure that
lawyers/litigants do not have to come physically to file such
proceedings in respective Courts/Tribunals across the country
including this Court, it is hereby ordered that a period of
limitation in all such proceedings, irrespective of the limitation
prescribed under the general law or Special Laws whether condonable
or not shall stand extended w.e.f. 15th March 2020 till further
order/s to be passed by this Court in present proceedings.
We are exercising this power under Article 142 read with
Article 141 of the Constitution of India and declare that this
order is a binding order within the meaning of Article 141 on all
Courts/Tribunals and authorities.
This order may be brought to the notice of all High Courts for
being communicated to all subordinate Courts/Tribunals within their
Issue notice to all the Registrars General of the High Courts,
returnable in four weeks.
(SANJAY KUMAR-II) (MUKESH NASA) (INDU KUMARI POKHRIYAL)
ASTT. REGISTRAR-cum-PS COURT MASTER ASSISTANT REGISTRAR
Whether this order of postponing the deadline by Hon’ble Supreme Court in view of Covid – 19, is valid even for Direct Taxes and Indirect Taxes compliance such as Filing of Forms under Vivad Se Vishwas Scheme, Filing of belated tax returns, filing of forms under GST, etc., ?
ARTICLE 142 OF COMPLETE JUSTICE IS A STRAIGHT JACKET FORMULA?
In case of mismatch, hawala, shaym dealers this is a master key for
Maharashtra value Added tax Act, 2002
Now stage has come to change basic theme of our Legal Battle. All Legal pundits have to use basic
rights, given under Indian Constitution 1950. If dealers in Maharashtra want justice and definite
results there is A decisive tool given by our Indian Constitution 1950. Article 142 in our constitution
which is the only constitution in the world which have powers & are given to Supreme courts, High
courts and Tribunals to give relief to anyone in India who is facing injustice. I am giving below Text
of Article 142 of Indian Constitution and two judgments given by Supreme Court of India which have
given relief to Sales Tax dealers.
Recently, in the State of Maharashtra the department of sales tax is trying to trap the
dealers/assesses by asking them to pay vat with interest and penalty and subsequently to pay tax
with interest and penalty on the purchases made from so called “Hawala Dealers”.
The department of sales tax first trapped certain dealers who had made Hawala transactions and did
not pay the vat into the treasury of State Government of Maharashtra. An affidavit stating about the
Hawala transactions were compulsorily taken out in the form of declaration by those Hawala
dealers. Thereupon, their vat registration certificate had been cancelled with retrospective effect
from 1st April 2005. The list of such Hawala dealers had been displayed on the site of department of
sales tax www.mahavat.gov.in. The list has been continuously updated.
Thereupon, the department of sales tax had called upon the beneficiary dealers who had made such
alleged purchases from the Hawala dealers and such beneficiary dealers were asked to pay vat with
interest and penalty for the purchases made from such alleged Hawala dealers.
Similarly, the said list had been provided by the State Government of Maharashtra to Hon. Central
Board of Direct Taxes (CBDT) for further action of Income Tax Interest and penalty. On receiving such
lists of Hawala dealers CBDT had forwarded the list to the respective assessing authorities
throughout the state of Maharashtra. After Judgement of M/s. Mahalaxmi Cotton Ginning Mills Ltd.
vs. State of Maharashtra, the Sales tax department is conveniently misusing the judgement against
beneficiary dealers & oppressing the said dealers and willfully & wrongly collecting tax, Interest,
penalty by way of increased revenue and harassment by way of prosecution.
Article 142 in the Constitution Of India 1950
Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc
(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as
is necessary for doing complete justice in any cause or matter pending before it, and any decree so
passed or orders so made shall be enforceable throughout the territory of India in such manner as
may be prescribed by or under any law made by Parliament and, until provision in that behalf is so
made, in such manner as the President may by order prescribe
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall,
as respects the whole of the territory of India, have all and every power to make any order for the
of securing the attendance of any person, the discovery or production of any documents, or the
investigation or punishment of any contempt of itself
Explanation:- Now let us understand this very Article which is core of our Constitution. This Article is
exists only in Indian Constitution. The apex court was entrusted with great plenary power in the
form of Article 142 which says that the Supreme Court in the exercise of its jurisdiction may pass
such decree or make such order as is necessary for doing complete justice in any cause or matter
pending before it. It is to be noted that this article uses the word `complete justice` rather than the
term `justice`. This is because complete justice travels much beyond the concept of giving justice to a
party. Complete justice strives at imparting justice not just for one side alone, but for all. Even if a
party has wronged another, the court cannot become an instrument to perpetuate wrong upon him.
1] Complete Justice wider with Amplitude:-
The expression `complete justice ` engrafted in Article 142 is of wide amplitude “couched 8 AIR 2000
SC 2587 9 Hari Narain v. Badri Das AIR 1963 SC 1558; Indo-China Steam Navigation Co. Ltd. v. Jasjit
Singh, Addl. Collector of Customs & Ors. AIR 1964 SC 1140 5 with elasticity to meet myriad
situation”. Complete justice is justice according to law and the Supreme Court would be well within
its power to even mould the relief so sought by the parties to ensure that no illegality is
perpetuated.The main purpose of Article 142 and the endeavor to do complete justice has been
explained by the Supreme court in Manohar Lal Sharma v. Principal Secy & Ors. 11 wherein the
apex court held that `the Supreme Court has been conferred with very wide powers for proper and
effective administration of justice. The Court has inherent power and jurisdiction for dealing with
any exceptional situation in LARGER public interest which builds confidence in the rule of law and
2] Larger Public Interest:-
The Supreme Court as the sentinel on the qui vive, has been invested with the powers which are
elastic and flexible and in certain areas the rigidity in exercise of such powers is considered
inappropriate which has been cited ` In Shahid Balwa v. Union of India & Ors.,12 the court said that
Article 136 read with Article 142 of the Constitution of India enables the Supreme Court to pass such
orders, which are necessary for doing complete justice in any cause or matter pending before it and,
any order so made, shall be enforceable throughout the territory of India. The power to do complete
justice under Article 142 is in the nature of a corrective measure whereby equity is given preference
over law to ensure that no injustice is caused. Equipped with such great discretionary powers, the
Supreme Court has often taken up the task of ensuring that honest parties are not the ultimate
sufferers and that the guilty/or the wrong is ultimately punished. Power under Article 142 is very
wide and can be used to pass any order which the court thinks is necessary for doing complete
justice between the parties.
No Straight Jacket Formula but in accordance with Law:-
There can be no straight jacket formula for exercising nor there can be any fetters or limited scope
of application for the powers under Article 142 which is plenary in nature. It seeks to ensure that no
injustice is caused by the rigors of law or due to the perversity of findings recorded by the courts. It
acts as an equity jurisdiction without losing the characteristics of being an action in accordance with
law. Article 142 is used as a tool to balance the conflicting interests of the parties and to ensure that
ultimately, the righteous succeeds. It is an inherent power and jurisdiction for dealing with any
extraordinary situation in the larger interests of administration 10 Secretary, State of Karnataka &
Ors. v. Umadevi (3) & Ors. AIR 2006 SC 1806 11 (2014) 2 SCC 532 12 (2014) 2 SCC 687 13 Supreme
Court Bar Association v. Union of India & Anr., AIR 1998 SC 1895 6 of justice and for preventing any
manifest injustice being done. However, the power is to be exercised only in exceptional
circumstances for furthering the ends of justice and not in a casual and a mechanical manner. The
purpose of Article 142 is to do effective, real and substantial justice, coextensive and commensurate
with the needs of justice in a given case in order to meet any exigency that may arise. However, it is
not to be exercised in a case where there is no basis in law which can form an edifice for building up
a superstructure. Keeping these principles in mind, the apex court has not hesitated to exercise its
power under Article 142, though fully aware of the restraints in judicial decision making process, in
order to do complete justice. The court in Commissioner of Income Tax, Shimla v. Greenworld
Corporation, Parwanoo, 15 ordered fresh income tax assessment. It held that is was necessary for
doing complete justice that an order passed on dictates of superior without following the due
process be quashed as being a nullity.
Sec. 482 CrPC deals with Inherent powers of the Court:-
In MVAT Act 2002, under section 74 offence and penalty- there are provisions for criminal
prosecution, even notice are issued to dealers. This power of court is very vital, it should be used by
Sec 482 CrPC reads as follows:
“Saving of inherent power of High Court- Nothing in this Code shall be deemed to limit or affect the
inherent powers of the High Court to make such orders as may be necessary to give effect to any
order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the
ends of justice.”
The section was added by the Code of Criminal Procedure (Amendment) Act of 1923 as the high
courts were unable to render complete justice even if in a given case the illegality was palpable and
apparent. The section envisages 3 circumstances in which the inherent jurisdiction may be exercised,
1. To give effect to an order under CrPC,
2. To prevent abuse of the process of the court,
3. To secure the ends of justice.
Though the jurisdiction exists and is wide in its scope it is a rule of practice that it will only be
exercised in exceptional cases., The section is a sort of reminder to the high courts that they are not
merely courts in law, but also courts of justice and possess inherent powers to remove injustice. The
inherent power of the high court is an inalienable attribute of the position it holds with respect to
the courts subordinate to it. These powers are partly administrative and partly judicial. They are
necessarily judicial when they are exercisable with respect to a judicial order and for securing the
ends of justice. The jurisdiction under section 482 is discretionary, therefore the high court may
refuse to exercise the discretion if a party has not approached it with clean hands.
Analysis of Case Law:-
1] Prem Chand Garg vs Excise Commissioner, U. P., on 6 November, 1962
Equivalent citations: 1963 AIR 996, 1963 SCR Supl. (1) 885
Author: P Gajendragadkar
Bench: Sinha, Bhuvneshwar P.(Cj), Gajendragadkar, P.B., Wanchoo, K.N., Gupta, K.C. Das, Shah,
Therefore even in a proceeding under Art. 32(1), this Court is competent to make all such orders as it
deems proper including an order for security for costs of the respondent.
The impugned rule which enunciates the jurisdiction of the Court to impose terms as to giving of-'
security is not therefore void.
By COURT: In accordance with the opinion of the majority the writ petition is allowed and the
order calling upon the petitioners to furnish security of Rs. 2,500/- is set aside. There will be no order
as to costs.
In this case Supreme Court made a order for part payment of Rs.2, 500/- but petitioner pleaded that
he is unable to pay this amount due to difficulties. To give complete justice Supreme Court withdrew
its own order. This judgement will be usefull for our part payment cases in Sales tax i.e. MVAT
2] Supreme Court of India
Asst.Commissioner vs M/S.Shukla & Brothers on 15 April, 2010
CIVIL APPEAL……… OF 2010
(@ SLP (C) NO. 16466 OF 2009)
In above referred case while discussing Article 142 and Article 226 of the Constitution of India, the
Supreme Court has stated that powers of the Supreme Court under Article 142 are much wider and
the Supreme Court would pass orders to do complete justice.
It may be necessary for that to refer to the basic facts giving rise to the present appeal. The
Respondent claimed to be a contractor who has obtained impartible contract of constructing 400
Shops in JP Market, Chhota Talab, Kota. As per the contract the shops were to be handed over to
Cloth Merchant Association, Kota. The respondent had received Rs.95, 26,276.00 in the year
1997-98 and Rs.22, 38,026.00 in the year 1998-99. The assessing authority formed an opinion and
Recorded a finding that the shutters and doors were not manufactured from tax paid raw material in
impartible contract and as such shutter was excluded from labour charges in the above years, and
Levied tax, interest, penalty and surcharge upon the respondent. The order of the assessing
authority dated 19th July, 2000 and 22nd February, 2001 respectively were challenged by the
respondent before the Deputy Commissioner (Appeals), Kota and intended that if the shutters were
not installed in the shops, then as per the contract the shops would not have deemed to be
complete. Relying upon the judgments of the Supreme Court in Gannon Dunkerley & Co. (Madras)
Ltd. – State of Madras [AIR 1958 SC 560] as well as State of Rajasthan Vs. Man Industrial Corporation
[(2003) 7 SCC 522] it was contended that in an impartible work contract as per the terms of that
contract, the material has been used in work contract and there was no contract for manufacturing
shutters. Thus on account of execution of impartible work contract, the property was immovable
and tax could not be levied thereon.
The appeal preferred by the respondent was accepted by the Deputy Commissioner vide his Order
Dated 23rd February, 2002. This Order was assailed in appeal by the Department before the
Rajasthan Tax Board which also came to be rejected vide Order dated 18th October, 2003. The
Board accepted the plea of the respondent that the shutters and doors were manufactured from tax
Paid raw material in a work contract, therefore, could not be the goods transferred for the purposes
of levy of tax, holding the same not justifiable to set aside the levy of tax, penalty, interest or
In this case set off was not granted by assessing authorities Supreme Court by invoking Article 142 of
Complete Justice directed the lower Authorities under Sales Tax laws for grant of Set off.
3] Smt. Ujjam Bai vs State Of Uttar Pradesh on 28 April, 1961
Equivalent citations: 1962 AIR 1621, 1963 SCR (1) 778
Bench: Das, S.K., KAPUR, J.L., SARKAR, A.K., SUBBARAO, K., HIDAYATULLAH, M., AYYANGAR, N.
RAJAGOPALA, MUDHOLKAR, J.R.
Per S. K. Das, J.-The right to move this Court by appropriate proceedings for the enforcement of
fundamental rights conferred by Part III of the Constitution is itself a guaranteed fundamental right
and this Court is not trammeled by procedural technicalities in making an order or issuing a writ for
the enforcement of such rights. There is no disagreement that in the following the classes of cases a
question of the enforcement of a fundamental right may arise and if it does arise, an application
under Art. 32 will lie, namely, (1) where action is taken under a statute which is ultra vires the
Constitution; (2) where the statute is intra vires but the action taken is without jurisdiction; and (3)
where the action taken is procedurally ultra vires as where a quasi-judicial authority under an
obligation to act. Judicially passes an order in violation of the principle of natural justice. Where,
however, a quasi-judicial authority makes an order in the undoubted exercise of its jurisdiction in
pursuance 781 of a provision of law which is intra vires, an error of law or fact committed by that
authority cannot be impeached otherwise than on appeal, unless the erroneous determination
relates to a matter on which the jurisdiction of that body depends. A tribunal may lack
jurisdiction if it is improperly constituted, or if it fails to observe certain essential preliminaries
to the inquiry; but it does not exceed its jurisdiction by basing its decision upon an incorrect
determination of any question that it is empowered or required (i. e. has jurisdiction) to determine.
In such a case, the characteristic attribute of a judicial act or decision is that it binds, whether right
or wrong, and no question of the enforcement of a fundamental right can arise on an application
under Art. 32.
4] Smt Ujjam Bai vs State Of U.P on 10 April, 1962
Equivalent citations: 1962 AIR 1621, 1963 SCR (1) 778
Bench: Das, S.K., KAPUR, J.L., SARKAR, A.K., SUBBARAO, K., HIDAYATULLAH, M., AYYANGAR, N.
RAJAGOPALA, MUDHOLKAR, J.R.
A decision by the Sales tax Officer exercising quasi-judicial power and acting within his powers under
the Act and within his jurisdiction must necessarily be valid and legal irrespective of whether the
decision is right or wrong. Therefore an order of the Sales tax Officer even if erroneous because of
misconstruction of notification issued there under remains a valid and legal order and a tax levied
there under cannot contravene fundamental rights and cannot be challenged under Article 32. An
aggrieved party must proceed against the decision by way of appeal etc. as provided under the
statute or in appropriate cases under Article 226 of the Constitution and finally by appeal to this
Court under Article 136. For the order to be valid and immune from challenge under Article 32, it is
necessary therefore that (1) the statute is intra vires in all respects; (2) the authority acting under it
acts quasi-judicially; (3) it acts within the powers given by the Act and within jurisdiction; and (4) it
does not contravene rules of natural justice.
Even Judgement of M/s. Mahalaxmi Cotton Ginning Mills Ltd is being completely misused by Sales
Tax Department and Couviently. All dealers are suffering by duresses, wrong interpretation of law.
Even petition in High Court under Article 227-Power of Superintendence over all courts by the High
Court is possible because true spirit of judgement of M/s. Mahalaxmi Cotton Ginning Mills Ltd. Is not
followed. Under Article 227 of Indian Constitution High court shall have power vested in the High
court to exercise judicial superintendence over the decisions of all Courts and Tribunals within the
respective jurisdiction is also part of the basis structure of the Constitution. (L. Chandrakumar vs.
Union of India, A.I.R. 1997 S.C. 1125 at p.1150)