TMI Blog2002 (3) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 1994-95 107/Hyd/97 1350/Hyd/97 27-11-1997 4,75,52,384 1995-96 14/Hyd/99 133/Hyd/99 01-04-1999 3,79,40,350 1996-97 39/Hyd/00 326/Hyd/00 08-08-2000 36,54,814 1997-98 22/Hyd/01 129/Hyd/01 15-06-2001 3,77,146 2. The learned representative for the assessee-petitioner submitted THAT: The stay granted by the Tribunal for the above years is still in force. However, the Assessing Officer by a letter dated 25-1-2002 required the assessee to pay the entire tax demand for the above years in view of the amended provisions of sub-section (2A) of section 254 of the Income-tax Act introduced by the Finance Act, 2001, with effect from 1-6-2001. The last stay order passed by this Tribunal say, for the assessment year 1997-98 is on 15-6-2001. In view of the amendment to section 254(2A), the stay granted by the Tribunal has ceased to be in operation and the demand has become due to be payable. Besides, the Assessing Officer has warned that unless necessary arrangements are made to pay off the total demand in arrears, he would be constrained to deem the assessee-Corporation as an assessee in defa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt it makes no difference as to whether the Tribunal has passed its order prior or subsequent to the amendment for the reason that the amendment made though with effect from 1-6-2001 has got retrospective operation. Hence, the stay granted by the Tribunal for all the assessment years in question has expired warranting therefore the assessee to get a fresh stay from the Tribunal for all the assessment years in question. The interpretation of the amended provision as per the Department is that it dates back i.e., retrospectively for the reason that the substantial right of the assessee is not affected, and only when it gets affected it will not be retrospective and as in the instant case no substantial right of the assessee is affected, the amended provision dates back i.e., retrospectively even to the date prior to the amendment. That apart, we do not find that there is any necessity for grant of stay in all these stay petitions especially when the stay has been already once granted by the Tribunal which stand expired. In the view of the Department, it is reiterated that the assessee has no prima facie case especially when the Members of the Tribunal who have heard some of the conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay be granted for all the assessment years in line and in tune with the earlier order of the Tribunal granting stay having been convinced that the assessee deserves grant of stay and which would not have been granted by the Tribunal had it not been convinced after hearing both the parties that the assessee is having a prima facie, case, financial difficulty and coercive steps being taken. Hence, it is most humbly prayed that orders may please be passed by the Tribunal either extending the stay or granting stay afresh for all the assessment years in question especially in the light of the decision of the Supreme Court in the case of R. Rajagopal Reddy v. Padmini Chandrasekharan [1995] 213 ITR 340. 5.1 Rival submissions heard and relevant orders read besides going through the facts of the case on record that are necessary for the purpose of adjudication of the instant stay petitions. The points that arise for our consideration in the instant proceedings are as to: (a) whether or not the stay granted by the Tribunal by its respective orders prior to 1-6-2001 when the amendment was inserted with the proviso to section 254(2A), has expired on account of the interpretation given by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power or jurisdiction to do so since that power is exclusively the power of the Legislature, namely, the Parliament. These two wings of a democratic government cannot encroach or intrude into the domain of the other as the field is specifically carved out for respective and proper functioning by the Constitution of India. Perhaps the interpretation given by the Department before us that the provisos are operative retrospectively is its wishful thinking on account of the nearness of the completion of the financial year in question before it. It is perhaps in dire need of funds but we cannot help the situation as we are bound by the Constitution of India and the relevant statute, namely, the Income-tax Act. 5.4 In fact and indeed, following case laws relied upon by the assessee and rather by the Revenue too come to the rescue of the assessee and also gives strength to the view taken by us as aforesaid: (a) In the case of K. Eapen Chako, the Hon'ble Supreme Court has held that if the Legislature forms a new procedure, alterations in the form of procedure are retrospective unless there is some good reason or other why they should not be. In other words, if a statute deals merely wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. The rule has, in fact, two aspects, for it, involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary'." In the case of Garikapati Veeraya v. N. Subbajah Choudhry AIR 1957 SC 540, Chief Justice S.R. Das, speaking for the court, had made the following pertinent observations in this connection: "The golden rule of construction is that, in the absence of any thing in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed." We have already discussed earlier that there is nothing in the Act to show that section 4(1) and 4(2) have to apply retrospectively to all pending proceedings wherein such a right is sought to be exercised by the plaintiff or such a defence has already got allowed to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne exception, viz., that if the amendment was nothing more than a procedural matter which did not affect substantive rights of the parties, it will have a retrospective effect. At the bottom of page 239, it further states that a statute is retrospective when it takes away or impairs any vested right acquired under the existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past, but a statute is not retrospective because a part of the requisites for its action is drawn from time antecedent to its passing. At page 240, it further states that the presumption against retrospective operation is strong in cases in which the statute, if operated retrospectively, would prejudicially affect vested rights." 5.6 In the instant case, where stay has been granted by the Tribunal already, i.e., prior to 1-6-2001 i.e., the date of coming into force of the aforesaid amendment by inserting the proviso to section 254(2A), right has accrued in favour of the assessee and against the Department by virtue of the Tribunal's order staying recovery proceedings on the assessee for collection of the demand in dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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