# M/S Balaji Coal Traders v. Commissioner, Commercial Tax, Lucknow & Ors

- **Citation:** (2024) 5 ILRA 1095
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-17
- **Case number:** Writ Tax No.1614 of 2022
- **Bench:** Shekhar B. Saraf
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-balaji-coal-traders-v-commissioner-commercial-tax-lucknow-ors-51957
- **Pages:** 8

## Headnote

(UPGST) Act, 2017 - Section 107 - Appeal -
Limitation - S. 107 provide Appeals to
Appellate Authority. Any person aggrieved
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
by any order passed under the Act by an
adjudicating authority may appeal to
Appellate Authority within three months
from the date on which the said order is
communicated to such person. If the
appellant is unable to file the appeal within
the initial three-month period, they can
seek an extension under Section 107(4) of
the UPGST Act. This extension allows the
appellant an additional period of one
month beyond the initial three months to
file the appeal. The clock of limitation
starts running "from the date on which the
said order or decision is communicated to
such person.

B. General Clauses Act, 1897, S. 9,
Commencement and Termination of Time -
Section 9 of the GC Act provides that when
calculating a time period that starts with
the word "from", the day of the event from
which the period begins is excluded, and
when the period ends with the word "to",
the last day of the period is included.
According to Section 9 of the GC Act, when
calculating the limitation period "from" the
date of communication of the order, the
day on which the order is communicated is
excluded - Meaning of the terms "within"
and "month" - In the context of S. 107 of
the UPGST Act, "within three months"
means that the appeal can be filed anytime
from the date following the communication
of the order until the end of the third
month. The term "month" in modern
statutory contexts refers to a calendar
month. A calendar month is defined as the
period from a given date in one month to
the corresponding date in the following
month. (Para 6, 8, 10)

C. Uttar Pradesh Goods and Services Tax
(UPGST) Act, 2017, S. 107 - Appeal -
Limitation - In the instant case appeal filed
u/s 107 of the UPGST Act by the Petitioner
was rejected on the ground that the same
had been filed one day after the expiry of
limitation, by treating 4 months as 120
days. Held :- Petitioner received the order
in original on 12.07.2022. He filed the
appeal on 10.11.2022. Three-month period
would have begun on 13.07.2022, and
expired on 12.10.2022, and the extended
period would have expired on 12.11.2022.
In reality, the appeal of the petitioner was
filed within time on 10.11.2022. Impugned
order was quashed. Court directed the first
appellate authority to hear the appeal on
merits and decide the same expeditiously.
(Paras 17, 18)

Allowed. (E-5)

List of Cases cited:

State of Himachal Pradesh & anr. Vs. Himachal
Techno Engineers & anr., reported in (2010) 12
SCC 210

## Text

5 All. M/S Balaji Coal Traders Vs. Commissioner, Commercial Tax, Lucknow & Ors.
1095
only for 'fees' in respect of matters
contained in the list but not including fees
taken in any court. List I and List II of
Schedule VII thus avoid overlapping powers
of taxation and proceed on the basis of
allocating adequate sources of taxation for
the federation and the provinces, with the
result that few problems of conflicting or
competing taxing powers have arisen under
the Government of India Act, 1935. This
scheme of the legislative lists as regards
taxation has been taken over by the
Constitution of India with like beneficial
results."
***
46. Therefore, taxing entries must be
construed with clarity and precision so as to
maintain
such
exclusivity,
and
a
construction of a taxation entry which may
lead to overlapping must be eschewed. If the
taxing power is within a particular
legislative field, it would follow that other
fields in the legislative lists must be
construed to exclude this field so that there
is no possibility of legislative trespass."

29. It is clear from the factual
matrix of the instant case that the respondent
herein had received royalty amount from
various
dealers
under
the
franchise
agreement and service tax has been duly
paid by it on the same. If these payments
have been subjected to service tax, they
cannot be recharacterized as the sale of
goods to levy VAT or sales tax. The
prevention
of
double
taxation
is
a
fundamental principle of tax law. Double
taxation occurs when the same income or
transaction is taxed more than once by
different tax authorities or under different
tax regimes. An activity once taxed as a
service cannot be taxed again as a sale of
goods. This principle is crucial for ensuring
fairness in the tax system and avoiding
undue tax burdens on taxpayers.
30. I would like to put on record my
gratitude for the assistance rendered by Sri
Bipin Kumar Pandey, learned Additional
Chief Standing Counsel appearing for the
revisionist and Sri Shubham Agarwal,
learned
counsel
appearing
for
the
respondent. Furthermore, I would also like
to put on record my appreciation for
painstaking research and assistance in
drafting this judgment by my Research
Associate Mr. Aman Deep Sharma and Law
Intern Mr. Jaspreet Singh.

31. In light of the aforesaid, I found
no reason to interfere with the view taken by
the
Commercial
Tax
Tribunal,
and
accordingly, the instant revision application
is dismissed.

32. There shall be no order as to the
costs.
----------
(2024) 5 ILRA 1095
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.05.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Writ Tax No.1614 of 2022

M/S Balaji Coal Traders ...Petitioner
Versus
Commissioner, Commercial Tax, Lucknow
& Ors. ...Respondents

Counsel for the Petitioner:
Ms. Pooja Talwar

Counsel for the Respondents:
Mr. Arvind Kumar Mishra,S.C.

A. Uttar Pradesh Goods and Services Tax
(UPGST) Act, 2017 - Section 107 - Appeal -
Limitation - S. 107 provide Appeals to
Appellate Authority. Any person aggrieved
1096 INDIAN LAW REPORTS ALLAHABAD SERIES
by any order passed under the Act by an
adjudicating authority may appeal to
Appellate Authority within three months
from the date on which the said order is
communicated to such person. If the
appellant is unable to file the appeal within
the initial three-month period, they can
seek an extension under Section 107(4) of
the UPGST Act. This extension allows the
appellant an additional period of one
month beyond the initial three months to
file the appeal. The clock of limitation
starts running "from the date on which the
said order or decision is communicated to
such person.

B. General Clauses Act, 1897, S. 9,
Commencement and Termination of Time -
Section 9 of the GC Act provides that when
calculating a time period that starts with
the word "from", the day of the event from
which the period begins is excluded, and
when the period ends with the word "to",
the last day of the period is included.
According to Section 9 of the GC Act, when
calculating the limitation period "from" the
date of communication of the order, the
day on which the order is communicated is
excluded - Meaning of the terms "within"
and "month" - In the context of S. 107 of
the UPGST Act, "within three months"
means that the appeal can be filed anytime
from the date following the communication
of the order until the end of the third
month. The term "month" in modern
statutory contexts refers to a calendar
month. A calendar month is defined as the
period from a given date in one month to
the corresponding date in the following
month. (Para 6, 8, 10)

C. Uttar Pradesh Goods and Services Tax
(UPGST) Act, 2017, S. 107 - Appeal -
Limitation - In the instant case appeal filed
u/s 107 of the UPGST Act by the Petitioner
was rejected on the ground that the same
had been filed one day after the expiry of
limitation, by treating 4 months as 120
days. Held :- Petitioner received the order
in original on 12.07.2022. He filed the
appeal on 10.11.2022. Three-month period
would have begun on 13.07.2022, and
expired on 12.10.2022, and the extended
period would have expired on 12.11.2022.
In reality, the appeal of the petitioner was
filed within time on 10.11.2022. Impugned
order was quashed. Court directed the first
appellate authority to hear the appeal on
merits and decide the same expeditiously.
(Paras 17, 18)

Allowed. (E-5)

List of Cases cited:

State of Himachal Pradesh & anr. Vs. Himachal
Techno Engineers & anr., reported in (2010) 12
SCC 210

(Delivered by Hon'ble Shekhar B. Saraf, J.)

1. This is a writ petition under Article
226 of the Constitution of India wherein
the petitioner is aggrieved by the order
dated April 19, 2022 passed by the
Assistant Commissioner, State Tax, Sector
-7, Agra (hereinafter referred to as the
'Respondent No. 2'), order dated July 12,
2022
passed
by
the
Assistant
Commissioner, State Tax, Sector - 5, Agra
(hereinafter referred to as the 'Respondent
No. 3'), and the order dated November 24,
2022 passed by the first appellate
authority. Vide order dated November 24,
2022, the appeal filed by the Petitioner
was dismissed as time barred.

2. Facts of the instant case are
briefly delineated below:

(a)
Petitioner
was
granted
registration certificate under the U.P. Goods
and Services Tax Act, 2017 (hereinafter
referred to as the UPGST Act').
(b) The aforesaid registration of the
petitioner was cancelled by the Respondent
No. 2 vide impugned order dated April 19,
2022.
(c) Thereafter, the Petitioner had
filed an application for revocation of the
5 All. M/S Balaji Coal Traders Vs. Commissioner, Commercial Tax, Lucknow & Ors.
1097
cancellation of registration before the
Respondent No. 3 which was rejected vide
impugned order dated July 12, 2022.
(d) Aggrieved by the impugned
order dated July 12, 2022 the Petitioner had
filed an appeal under Section 107 of the
UPGST Act. The first appellate authority
vide order dated November 24, 2022
dismissed the said appeal as time barred.
Relevant portions of the impugned order
dated November 24, 2022 are extracted
herein below:
"अपीलाथी द्वारा मदनांक 12.07.22 को आदेश की
प्रामप्त स्वीकार करते हुए मदनांक 10.11.2022 को अपील योमजत
की गयी है। उ० प्र० जी०एस०टी० एंव सी०जी०एस०टी० की धारा
107(1) के अन्तगटत आदेश तामीली के 03 माह (90 मदन) के
अन्तगटत प्रथम अपील योमजत करने की व्यवस्था है तथा धारा
107(4) के अन्तगटत 01 माह के मवलम्ब को क्षमा करने का
अमधकार प्रथम अपीलीय अमधकारी को मदया गया है, इस प्रकार 04
महा (120 मदन) के भीतर तक अपील प्रस्तुत की जा सकती है,
जबमक प्रश्नगत अपील मनधाटररत समय(मवलम्ब क्षमा समहत) से लगभग
01 मदन बाद दामखल की गयी है। इस प्रकार अमधमनयम के अंतगटत
मनधाटररत समय के बाद अपील दायर की गयी है। उक्त कमी के मबन्दु
पर अपीलकताट ने बताया मक कोयला व्यापारी संघ को जी०एस०टी०
में परेशानी का सामना करना पड रहा है, मजससे उ०प्र० प्रदूर्ण बोडट
को भी अवगत कराया गया है, परन्तु मामला अभी लंमबत होने कारण
वे समय पर अपील दामखल नहीं कर सके थे।...
***
...प्रमामणत है मक उ०प्र० जी०एस०टी० एंव
सी०जी०एस०टी० की धारा 107(1) तथा 107(4) के अनुसार
प्रामवधामनत समय सीमा में अपील दायर नही की गयी है। जहां तक
मवलम्ब क्षमा का प्रश्न है, माननीय सवोछच न्यायालय द्वारा मै०
मसम्प्लैक्स इम्फ्रास्रक्चर मल० बनाम यूमनयन ऑफ इमण्डया (मसमवल
अपील सं० 11866/2018) (स्पेशल लीव मपटीशन नं०
17521/2017) जो मक आमवटेशन एण्ड कॉनमसमलएशन एक्ट से
सम्बमन्धत था, में स्पि मनणटय मदया गया है मक उक्त एक्ट के
Express provisias को देखते हुए मवलम्ब क्षमा नहीं मकया
जा सकता है। उक्त एक्ट के प्रामवधानों के अनुरूप
सी०जी०एस०टी०/उ०प्र०जी०एस०टी० एक्ट की धारा 107(1) के
अनुसार अपील आदेश प्रामप्त के 03 माह के अन्दर दामखल की जानी
चामहये तथा धारा 107(4) के अनुसार अपील प्रामधकारी को यह
समाधान हो जाता है मक अपीलकताट 03 माह की पूवाटक्त अवमध के
भीतर अपील करने के पयाटप्त कारणो से मनवाररत मकया गया था तो
वह उसे 01 माह की अवमध के भीतर प्रस्तुत करना अनुज्ञात करेगा।
उक्त से यह स्पि है मक मनयत अवमध 03 माह के आगे अमधकतम
01 माह का अमतररक्त समय का Extention मदये जाने का ही
Statutory mandate है। उक्त न्याय मनणटय एंव एक्ट के
प्रामवधानों के आलोक में अपील कालबामधत होने के कारण ग्राह नहीं
है तथा अस्वीकार मकये जाने योग्य है।"

3. I have heard the learned counsel
appearing for the parties and perused the
material on record.

4. In the instant writ petition, the
primary issue that lies for the consideration
of this Court is that "Whether the appeal
filed by the Petitioner under Section 107 of
the UPGST Act was within the statutory
time limit?"

5. I have reproduced the relevant
sub sections of Section 107 of the UPGST
Act herein for ease of reference:

107.
Appeals
to
Appellate
Authority. - (1) Any person aggrieved by
any decision or order passed under this Act
or the Central Goods and Services Tax Act,
2017 by an adjudicating authority may
appeal to such Appellate Authority as may
be prescribed within three months from the
date on which the said decision or order is
communicated to such person.
***
(4) The Appellate Authority may, if
he is satisfied that the appellant was
prevented
by
sufficient
cause
from
presenting the appeal within the aforesaid
period of three months or six months, as the
case may be, allow it to be presented within
a further period of one month."

6. Since the clock of limitation
starts running "from the date on which the
1098 INDIAN LAW REPORTS ALLAHABAD SERIES
said order or decision is communicated to
such person" it would be prudent to refer to
Section 9 of the General Clauses Act, 1897
(hereinafter referred to as the 'GC Act')
which provides as follows:

"9.
Commencement
and
termination of time. - (1) In any [Central
Act]
or
Regulation
made
after
the
commencement of this Act, it shall be
sufficient, for the purpose of excluding the
first in a series of days or any other period
of time, to use the word "from", and, for the
purpose of including the last in a series of
days or any other period of time, to use the
word "to".
(2) This section applies also to
all [Central Acts] made after the third day
of January, 1868, and to all Regulations
made on or after the fourteenth day of
January, 1887."

7. The phrase "from the date on
which the said decision or order is
communicated to such person" is crucial as
it marks the starting point of the limitation
period for filling an appeal. The legislative
intent behind this provision is to ensure that
the aggrieved party has a clear and fair
understanding of the decision or order
before the clock starts ticking for the appeal
period.

8. Section 9 of the GC Act provides
guidance on how to compute periods of time
specified
in
statutes.
Specifically,
it
indicates that when calculating a time period
that starts with the word "from", the day of
the event from which the period begins is
excluded, and when the period ends with
word "to", the last day of the period is
included. According to Section 9 of the GC
Act, when calculating the limitation period
"from" the date of communication of the
order, the day on which the order is
communicated is excluded. This ensures
that the appellant has a full three months to
prepare and file the appeal. For example, if
an order is communicated to a taxpayer on
January 1, the period of three months will
start from January 2.

9. It is also crucial to understand the
meaning of the individual terms "within"
and "month" as used in legal parlance and
specifically within the framework of the
UPGST Act.

10. The term "within" in legal
terminology typically denotes the inclusion
of the entire period specified, up until the
last possible moment of the specified time
frame. When a statue prescribes an action to
be taken "within" a certain period, it
generally means that the action can be
performed any time from the beginning of
the period until the end of the last day of the
period. For instance, if a law states that an
appeal must be filed "within three months",
it implies that the appeal can be filed at any
point during the three-month period, right up
until the end of the last day of the threemonth period. This interpretation ensures
that the party obligated to take action has the
full benefit of the entire period specified by
the statute. In the context of Section 107 of
the UPGST Act, "within three months"
means that the appeal can be filed anytime
from the date following the communication
of the order until the end of the third month,
ensuring that the appellant has the maximum
possible time to prepare and file their
appeal.

11. The term "month" is a
fundamental unit of time in statutory
interpretation, particularly in the context of
legal deadlines and limitation periods. The
term "month" can be interpreted in various
ways, but in modern statutory contexts, it
5 All. M/S Balaji Coal Traders Vs. Commissioner, Commercial Tax, Lucknow & Ors.
1099
primarily refers to a calendar month. A
calendar month is defined as the period from
a given date in one month to the
corresponding date in the following month.
For example, a period of one calendar month
from January 15 would end on February 14
and the next month in this context would
begin
from
February
15.
With
the
standardization of the Gregorian calendar, a
month is commonly understood to mean a
calendar month. This uniformity aids in
consistent
statutory
interpretation
and
application, ensuring that legal deadlines are
clear and predictable.

12. Thus, while calculating the
three-month period for filing an appeal, the
starting point is the day following the date
of communication of the order. For example,
if an order is communicated on January 1,
the three-month period begins on January 2
and ends on April 1:

Communication
Date
January 1, 2024
Limitation
Begins From
January 2, 2024
Calculation
of
Three Months
January 2, 2024 to
February 1, 2024
February 2, 2024 to
March 1, 2024
March 2, 2024 to
April 1, 2024
Limitation Ends
On

April 1, 2024

13. If the appellant is unable to file
the appeal within the initial three-month
period, they can seek an extension under
Section 107(4) of the UPGST Act. This
extension allows the appellant an additional
period of one month beyond the initial three
months to file the appeal. To calculate the
extension period under Section 107(4) of the
UPGST Act, the following steps are
involved:

1. Determine Initial Period End
Date: Identify the last date of the initial
three-month
period.
2. Add One Month: Add one
calendar month to the initial period end date
to determine the extended deadline for filing
the appeal.
Taking the earlier example, in
which, the limitation period ended on April
1, 2024, the extended period for filling an
appeal would end on May 1, 2024. It is
important to point out here that the extended
period would start running from the next day
after the expiry of the originally prescribed
limitation period.

14. In this regard, reference can be
made to the judgment of the Hon'ble
Supreme Court in State of Himachal
Pradesh and Another v. Himachal Techno
Engineers and Another. reported in (2010)
12 SCC 210. The Hon'ble Supreme Court in
the aforesaid case explained the calculation
of the period of a "month" as follows:
"17. In Dodds v. Walker [(1981) 1
WLR 1027 : (1981) 2 All ER 609 (HL)] the
House of Lords held that in calculating the
period of a month or a specified number of
months
that
had
elapsed
after
the
occurrence of a specified event, such as the
giving of a notice, the general rule is that the
period ends on the corresponding date in the
appropriate subsequent month irrespective
of whether some months are longer than
others. To the same effect is the decision of
this Court in Bibi Salma Khatoon v. State of
Bihar [(2001) 7 SCC 197]
18. Therefore when the period
prescribed is three months (as contrasted
from 90 days) from a specified date, the said
period would expire in the third month on
1100 INDIAN LAW REPORTS ALLAHABAD SERIES
the date corresponding to the date upon
which the period starts. As a result,
depending upon the months, it may mean 90
days or 91 days or 92 days or 89 days.
Re: Question (iii)
19. As the award was received by
the Executive Engineer on 12-11-2007, for
the purpose of calculating the three months
period, the said date shall have to be
excluded having regard to Section 12(1) of
the Limitation Act, 1963 and Section 9 of the
General Clauses Act, 1897. Consequently,
the three months should be calculated from
13-11-2007 and would expire on 12-2-2008.
Thirty days from 12-2-2008 under the
proviso should be calculated from 13-22008 and, having regard to the number of
days in February, would expire on 13-32008. Therefore the petition filed on 11-32008 was well in time and was not barred by
limitation."

15. To qualify for an extension
under Section 107(4) of the UPGST Act, the
appellant must demonstrate sufficient cause
for not presenting the appeal within the
initial three-month period. Sufficient cause
refers to circumstances beyond the control
of the appellant that prevented them from
filling the appeal within the stipulated time
frame. The appellate authority may consider
following factors when assessing whether
sufficient cause has been demonstrated:

Nature of Circumstances: The
severity and impact of the circumstances
preventing the appellant from filling the
appeal.
Evidence Presented: The quality
and credibility of the evidence presented by
the appellant to support their claim of
sufficient cause.
Timeliness of Request: Whether
the appellant promptly sought an extension
after
encountering
the
circumstances
preventing them from filing the appeal
within the initial period.

16. Limitation provisions in the
UPGST Act set clear timelines for various
actions, such as filing returns, making
payments, or initiating appeal. By imposing
time limits on actions, limitation provisions
discourage
delay
and
procrastination.
Taxpayers are incentivized to fulfil their
obligations promptly, which contributes to the
smooth functioning of the tax administration
system. Limitation provisions ensure equal
treatment of taxpayers by establishing uniform
deadlines for compliance. This prevents unfair
advantages for non-compliant taxpayers and
promotes a level playing field in the taxation
process.

17. Counsel appearing on behalf of
the Petitioner submitted that the appeal filed
under Section 107 of the UPGST Act by the
Petitioner was rejected on the ground that the
same had been filed one day after the expiry of
limitation and by treating 4 months as 120
days. She humbly submits that the authorities
below had erred in not reading the provision
correctly, and in reality, the appeal of the
petitioner had been filed within time on
November 10, 2022.

18. It is evident that that the petitioner
received the order in original on July 12, 2022
and filed the appeal on November 10, 2022. In
light of the same, three months period would
have begun on July 13, 2022 and expired on
October 12, 2022 and the extended period
would have expired on November 12, 2022. In
light of the same, it appears that the calculation
done by the authorities below is incorrect
which
warrants
the
exercise
of
writ
jurisdiction.

19. In the realm of administrative
law, the writ jurisdiction of superior courts
5 All. M/S Balaji Coal Traders Vs. Commissioner, Commercial Tax, Lucknow & Ors.
1101
serves as a powerful tool for ensuring justice,
fairness, and adherence to the rule of law. One
of the key grounds for invoking writ
jurisdiction is the presence of factual errors or
errors apparent on the face of the record. This
allows aggrieved parties to seek judicial
intervention when administrative authorities
have committed errors that are evident from
the records of the case. In the context of
taxation and administrative adjudication, the
exercise
of
writ
jurisdiction
becomes
particularly
relevant
when
there
are
discrepancies in the calculation of statutory
timelines, as exemplified in the instant case.
The presence of errors apparent on record
provides a valid ground for the exercise of writ
jurisdiction
by
the
courts.
When
administrative authorities commit mistakes
that are evident from the records of the case,
aggrieved parties have the right to seek
judicial intervention to rectify such errors and
ensure justice.

20. Accordingly, let there be a writ
of certiorari issued against the order dated
November 24, 2022 passed by the first
appellate authority. The said order is
quashed and set aside. This Court directs the
first appellate authority to allow the delay in
filing the appeal and thereafter hear the
appeal on merits and decide the same
expeditiously, preferably within a period of
two months from the date of production of a
certified copy of this order before it.

21. With the aforesaid directions,
this writ application is disposed of. There
shall be no order as to the costs.

(Shekhar B. Saraf, J.)

EPILOGUE

22. Chanakya, also known as
Kautilya or Vishnugupta, was a renowned
ancient Indian philosopher, economist, and
statesman who authored the Arthashastra, a
treatise on statecraft, economics, and
governance. In the Arthashastra, Chanakya
emphasized the importance of dharma, or
righteous conduct, in governance and
taxation. According to Chanakya, taxation
should be guided by dharma, ensuring that it
is fair, equitable, and beneficial to the
welfare of the State and its subjects. In New
India, the principles espoused in Chanakya's
Arthashastra remain relevant for promoting
ethical
governance
and
sustainable
development. Taxation is not merely a fiscal
tool but a means of advancing social justice,
economic prosperity, and environmental
sustainability. Therefore, compliance with
tax obligations is crucial for revenue
generation, which, in turn, funds essential
public
services
and
infrastructure
development.

23. In the evolving landscape of
taxation in New India, fostering a culture of
compliance has emerged as a cornerstone for
achieving economic growth, stability, and
social development. Embracing compliance
culture entails adhering to tax laws,
regulations, and deadlines in a proactive and
transparent manner. Within this framework,
the role of limitation provisions cannot be
understated. These provisions set clear
boundaries and timelines for taxpayers and
tax authorities, ensuring accountability,
fairness, and efficiency in the tax system.

24. A robust compliance culture
stimulates
economic
development
by
fostering an environment of trust, certainty,
and predictability. When taxpayers comply
with tax laws and regulations, it enhances
investor
confidence,
attracts
foreign
investments, and promotes entrepreneurship
and innovation. Compliance also ensures a
level playing field for businesses, and
1102 INDIAN LAW REPORTS ALLAHABAD SERIES
prevents
unfair
advantages
to
noncomplying entities and encourages healthy
competition. Limitation provisions serve as
guardrails within the tax framework,
preventing arbitrary or prolonged disputes
that could disrupt economic activities. By
imposing time limits on legal actions,
limitation provisions facilitate the timely
resolution
of
tax
matters,
reducing
uncertainty
and
promoting
business
continuity. Strict adherence to limitation
periods ensures that tax disputes do not
linger indefinitely, providing clarity and
stability for taxpayers and investors alike.
----------
(2024) 5 ILRA 1102
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.05.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Special Appeal No. 64 of 2024

Dr. Bhawana ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Shivang Tiwari, Apporva Tewari, Vimalesh Kumar
Singh

Counsel for the Respondent:
C.S.C.

(A) Service Law - The Allahabad High Court
Rules, 1952 - Chapter VIII Rule 5 - Special
Appeal - Appointment to Public Post -
Medical Officer in Community Health
Center (Ayurvedic and Unani) - unfair
treatment or unfair policy - differential
treatment for grant of study leave - no
rational and intelligible criteria for treating
the two classes differently. (Para - 39)

(B) Word and Phrases - Sub-rule (2) of
Subsidiary Rule 146-A - 'ordinarily' - itself
is indicative that in given circumstances,
may be extraordinary circumstances, such
leave can be granted to a government
servant who has put in less than five years
of service - Present facts constitute
extraordinary circumstances. (Para -
24,32)

Appellant/Petitioner took an entrance exam for a
PG course - applied for Medical Officer post
before knowing PG course result - selected as a
Medical Officer - with a 2-year probation - Joined
PG course - Completed half of PG course - Joined
as Medical Officer - Applied for 12 months study
leave - to complete remaining half of PG course
(16-18 months) - Leave application was rejected
- citing no provision for study leave for a
probationer with less than 4 months of service -
Rejection referenced Rules 81-B(4), 84, 146(2),
157-A(4), and Financial Handbook Vol. 2 Part-II
- Appellant challenged rejection by filing writ
petition - dismissed by Single Judge - rejection
was unfair and discriminatory -hence appeal.
(Para -7,27,28)

HELD: - Appellant's appointment as Medical
Officer valid. Eligibility criteria and selection
process
were
properly
followed,
and
appellant was eligible for appointment
despite
participating
in
PG
course
examination. Both groups consist of doctors
(P.M.H.S. and Ayurvedic Services), and there
should be no discrimination. State can't have
different standards for similar situations.
Discrimination unacceptable. Not only was
study leave permissible, but it was also a
fitting case for granting study leave. (Para -
35,40)

Writ Petition & Special Appeal allowed. (E7)

List of Cases cited:

Krishna Kant Pandey Vs St. of Uttarakhand & ors.,
(2015) 6 SERVLR 85

(Delivered by Hon'ble Rajan Roy, J. &
Hon'ble Om Prakash Shukla, J.)

1. Rejoinder affidavit filed today, copy
of which has been served to learned