2 comments on “In Re Cognizance For Extension Of Limitation (Supreme Court)”

1. E V Sri Krishna says:

   March 23, 2020 at 7:00 pm

   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., ?

   Reply
2. gajanan Khare adv says:

   March 24, 2020 at 3:40 pm

   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
   purpose
   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
   strengthens democracy.
   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
   us.
   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,
   namely:
   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,
   J.C.
   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
   Act,2002.
   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
   surcharge.
   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.

   Conclusion:-
   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)

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