TMI Blog1996 (8) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... being the plain meaning, the said Notification must be given full effect. Full effect can be given only if the said Notification is read as being applicable not only to assessments which were incomplete but also to assessments which reached finality by reason of the earlier prescribed period of four years having elapsed. Where language as unambiguous as this is employed, it must be assumed that the legislature intended the amended provision to apply even to assessments that had so become final: if the intention was otherwise, the Legislature would have so stated. In the result, the appeal is allowed. The judgment and order under appeal is set aside. The respondents shall be entitled to proceed upon the notices dated 7th November, 1974, issued to the 1st respondent reopening its assessments for Assessment years Chaitra Sudi 2023 and 2024. - C.A. 716 OF 1981 - - - Dated:- 28-8-1996 - S.P. BHARUCHA AND K.S. PARIPOORNAN, JJ. JUDGMENT The correctness of the judgment and order of a Division Bench of the High Court at Calcutta is under challenge in this appeal by the Commercial Tax authorities of the State of West Bengal. The first respondent was the sole proprietary co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legality of these notices. The validity of the amendment of Section 26[1] of the Act was called in question, and was upheld. [This contention need not detain us because it is not passed.] It was argued on behalf of the first respondent that the right to re-open the assessments dated 17th February, 1969, and 26th March, 1969, stood barred under the unamended provisions of Rule 80[5] [ii] when said Notification amending these provisions was issued and, therefore, the notices were bad in law. The contention was upheld. The High Court held that, by the amendment of the rule, assessments which had been completed could be revised within 6 years of the date of such completion, but when the right to revise the assessments under the unamended provision of the rule stood barred on the date the amendment was made, such assessments could not be re-opened or revised. The said Notification did not either expressly or by necessary implication confer any power of revision of assessments which stood barred on the date on which it was issued. The High Court relied upon the decisions of this Court in S.S. Gadgil, Income-Tax Officer, Bombay, vs. Lal and Co., 1964 [8] S.C.R. 72, and J.P. Jani, Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end of the year from the year of assessment. The Income-tax Officer could therefore commence a proceeding under s. 34 on March 27, 1957, only if the amended section applied and not otherwise. The amending Act came into force after the period provided for the issue of a notice under s. 34 before it was amended had expired. It is true that there was no determinable point of time between the expiry of the prescribed time within which the notice could have been issued against the assessee under s. 34 proviso [iii] before it was amended. But there was no overlapping period either. Prima facie, on the expiry of the period prescribed by s. 34 as it originally stood, there was no scope for issuing a notice unless the Legislature expressly gave power to the Income-tax Officer to issue notice under the amended section notwithstanding the expiry of the period under the unamended provision or unless there was overlapping of the period within which notice could be issued under the old and the amended provision. The court quoted with approval the following observations in Ahmedabad Manufacturing and Calico Printing Co. Ltd. vs. S.C. Mehta, Income-tax Officer and another, 1963 Supp. [2] SCR 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retrospective operation to the provision which was not warranted either by its express language or by necessary implication. The provision did 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 1922 Act. In the case of S.K. Habibullah, the Income-tax Officer had sought to rely upon Section 35[5] which had been incorporated by Section 19 of the Indian Income-tax [Amendment] Act, 1953, with effect from 1st April, 1952. Clause [5] was one of a group of clauses added by the Amending Act which dealt with the rectification of assessments. It dealt with the inclusion of income or correction of the income of a partner in a firm consequent upon assessment or re-assessment of the firm of which he was a partner. The Legislature by a fiction had regarded the inclusion and correction as the rectification of a mistake apparent from the record and prescribed a special terminal reckoning for the period of four years within which the rectification had to be made. Under clause [5] the inclusion of the shares in the assessment of the partners or the correction thereof w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the Legislature. What, therefore, we have to seek is the clear meaning of the said Notification. If there be no doubt about the meaning, the amendment brought about by the said Notification must be given full effect. If the language expressly so states or clearly implies, retrospectivity must be with effect from 1st November, 1971, so as to encompass all assessments made within the period of six years theretofore, whether they have become final by reason of the expiry of the period of four years or not. By reason of the said Notification, with effect from 1st November, 1971, Rule 18(5)(ii) has to be read as barring the commissioner (or other authority to whom power in this behalf has been delegated by the commissioner) from revising of his own motion any assessment made or order passed under the Act. or the rules if the assessment has been made or the order has been passed more than six years previous to 1st November, 1971, Put conversely, with effect from 1st November, 1971, Rule 18(5)(ii) permits the Commissioner (or other authority) to revise of his own motion any assessment made or order passed under the Act or the rules provided the assessment has not been made or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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