TMI Blog1978 (5) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... espectively of the Commercial Tax Officer. The reasons for reopening the assessments as stated in the impugned notices are that for the period, namely, 4 quarters ending Chaitra Sudi 8, 2023, the Commercial Tax Officer had wrongly allowed a taxable sale of Rs. 26,68,500 under section 5(2) (a)(iii) of the Act as sales to a registered dealer named M/s. Luxmi Narayan Jute Mfg. Co. Ltd., but that was not supported by any declaration forms. In the subsequent period, namely, 4 quarters ending Chaitra Sudi 8, 2024, the deduction granted was Rs. 48,01,200 as sales to the said registered dealer and that also was not supported by any declaration forms. In both the cases it was proposed to levy tax at the rate of 6 per cent on the amounts of taxable sales. The principal contention of the appellant in the writ petition was that there was initial lack of jurisdiction on the part of respondent No. 2 to issue the impugned orders and that the conditions precedent to the issue of the same were not fulfilled. The learned Judge came to the finding that there was no want of jurisdiction on the part of respondent No. 2 in issuing the said notices. In that view of the matter, he discharged the rule nisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0, as it stood before the amendment by the said notification, inter alia, provided: "The Commissioner or any other authority to whom power in this behalf has been delegated by the Commissioner, shall not, of his own motion revise any assessment made or order passed under the Act or the Rules thereunder if- (i) the time within which an appeal or application for revision, as the case may be, may be made before him has not expired; or (ii) the assessment has been made or the order has been passed more than four years previously." Sub-rule (5) was amended by the said Government notification, the relevant portion of which is set out below: Notification No. 1123 F.T. dated 30th March, 1974. In exercise of the power conferred by section 26 of the Bengal Finance (Sales Tax) Act, 1941 (Ben. Act VI of 1941), the Governor is pleased hereby to make, with effect from the 1st November, 1971, the following amendments in the Bengal Sales Tax Rules, 1941, as subsequently amended (hereinafter referred to as the said rules), namely: AMENDMENTS In rule 80 of the said rules, in sub-rule (5),- (a) in clause (ii), for the words "four years", substitute the words "six years"; (b) in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be entitled to revise any assessment made or order passed under the Act or the Rules within six years from the date of assessment. The amendment has taken effect from 1st November, 1971. Under the unamended provision of clause (ii), the power of revision of any assessment was limited to four years from the date of assessment. It is not disputed that before the said amendment was made the right to revise the assessments of sales tax payable by the appellant for the periods in question had become barred on the expiry of four years from the date of assessment under the unamended provision of clause (ii). It is urged by Mr. Bhattacharya for the appellant, that after such right was barred the assessments cannot be revised under the amended rule. It is contended that the amendment of clause (ii) of sub-rule (5) of rule 80 of the Rules does not expressly or by necessary implication confer on the sales tax authorities the right to revise an assessment which had become barred before the amendment was made. In support of his contention Mr. Bhattacharya has placed reliance on two decisions of the Supreme Court. In S.S. Gadgil v. Lal Co.[1964] 53 I.T.R. 231 (S.C.); A.I.R. 1965 S.C. 171 at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the period provided, become barred." In the next Supreme Court case of J.P. Jani v. Induprasad Devshanker Bhatt[1969] 72 I.T.R. 595 at 601 (S.C.); A.I.R. 1969 S.C. 778 at 781., what happened was, inter alia, that the respondent was assessed by the Income-tax Officer for the assessment year 1947-48 by an assessment order dated 31st January, 1952. Under section 34(1) of the Income-tax Act, 1922, the Income-tax Officer had power to assess or reopen assessment of any year in cases falling under clause (a) of section 34(1) at any time within 8 years and in cases falling under clause (b) of that section at any time within 4 years of the end of that year. The Income-tax Act, 1922, was repealed by the Income-tax Act, 1961. Under the new Act, the corresponding provisions of section 34 of the old Act are sections 147 to 153. The time for taking action for assessment or reassessment in case of escaped income exceeding Rs. 50,000 but less than Rs. 1,00,000 was enlarged from 8 years to 16 years by section 149(1)(a)(ii) of the new Act. On 4th January, 1963, the Income-tax Officer issued a notice calling upon the respondent to show cause why proceedings should not be taken under section 147( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide or unless there is a necessary implication, retrospective operation should not be given to the statute so as to affect, alter or destroy any right already acquired or to revive any remedy already lost by efflux of time. On behalf of the appellants reference was made to the opening phrase 'where in respect of any assessment year after the year ending on the 31st day of March, 1940' occurring in section 297(2)(d)(ii) of the new Act, but these general words cannot take in their sweep all assessment years subsequent to the year ending on 31st March, 1940, without regard to the question whether the right to reopen the assessment in respect of any assessment year was or was not barred under the repealed Act. We consider that the language of the new section must be read as applicable only to those cases where the right of the Income-tax Officer to reopen the assessment was not barred under the repealed section. In our view, the new statute does not disclose in express terms or by necessary implication that there was a revival of the right of the Income-tax Officer to reopen an assessment which was already barred under the old Act." There can be no doubt that the above two decisions ..... 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