The Plea of Limitation IX: Express Exclusion of Section 5 of The Limitation Act, 1963

The Assam Value Added Tax Act, 2003 

81. Revision to High Court – (1) Any dealer or other person, who is dissatisfied with the decision of the Appellate Tribunal, or the Commissioner may, within sixty days after being notified of the decision of the Appellate Tribunal, file a revision to the High Court; and the dealer or other person so appealing shall serve a copy of the notice of revision on the respondents to the proceedings.

84. Application of Sections 4 and 12 of The Limitation Act, 1963 – In computing the period of limitation under this Chapter, the provisions of Section 4 and 12 of The Limitation Act, 1963 (Central Act 36/1963) shall, so far may be, apply.


A scrutiny of the scheme of VAT Act goes to show, it is a complete code. Section 84 of VAT Act made only Sections 4 and 12 of Limitation Act applicable to the proceedings under VAT Act. The apparent legislative intent, which can be clearly evinced, is to exclude other provisions, including Section 5 of Limitation Act. Section 29(2) stipulates, in the absence of any express provision in a special law, provisions of Sections 4 to 24 of Limitation Act would apply. If the intention of the Legislature was to make Section 5, or for that matter, other provisions of Limitation Act applicable to the proceedings under VAT Act, there was no necessity to make specific provision like Section 84 thereby making only Sections 4 and 12 of Limitation Act applicable to such proceedings, inasmuch as these two Sections would also have become applicable by virtue of Section 29(2) of Limitation Act. It is, thus, clear, the Legislature intended only Sections 4 and 12 of Limitation Act, out of Sections 4 to 24 of the said Act, applicable under VAT Act thereby excluding the applicability of the other provisions. 

The High Court has rightly pointed out the well settled principle of law, “the Court cannot interpret the statute the way they have developed the common law ‘which in a constitutional sense means judicially developed equity’. In abrogating or modifying a rule of the common law the Court exercises the same power of creation that built up the common law through its existence by the Judges of the past. The Court can exercise no such power in respect of statute, therefore, in the task of interpreting and applying a statute, Judges have to be conscious that in the end the statute is the master not the servant of the Judgment and no Judge has a choice between implementing it and disobeying it.”

What, therefore, follows is, the Court cannot interpret the law in such a manner so as to read into the Act an inherent power of condoning the delay by invoking Section 5 of Limitation Act, 1963 so as to supplement the provisions of VAT Act which excludes the operation of Section 5 by necessary implications.”

 – Hon’ble Justice A.K. Sikri, M/s. Patel Brothers v. State of Assam, [Civil Appeal Nos. 49-50 of 2017].


Section 5 of Limitation Act is specifically excluded so far as appeal under Section 30 of The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is concerned [International Asset Reconstruction Company of India Limited v. Official Liquidator of Aldrich Pharmaceuticals Limited, (2017) 16 SCC 137]. R. Venugopal v. Jotheeswaran, (2016) 16 SCC 588 has been expressly overruled.

Hon’ble Justice M.R. Shah, Avneesh Chandan Gadgil v. Oriental Bank of Commerce, Civil Appeal No. 6898 of 2021] decided on 24.11.2021.