TMI Blog2011 (12) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. The assessment process if completed, there is no purpose in contending that the proviso would still be made applicable so as to reopen the case. No hesitation to hold that the orders of the respondent impugned in these writ petitions have no legal basis. Accordingly, the writ petitions stand allowed and the impugned orders are set aside - Writ Petition Nos. 14826, 14827 of 2002 - - - Dated:- 16-12-2011 - JYOTHIMANI P. AND JANARTHANARAJA P.P.S., JJ. For the Appellant : P. Rajkkumar For the Respondent : R. Sivaraman, Special Government Pleader, ORDER :- The order of the court was made by P. JYOTHIMANI J.- These writ petitions have been filed by the assessee challenging the order passed by the respondent in exercise of its suo motu power of revision, in respect of the business of the petitioner relating to circulation sales for the assessment years 1974-75 and 1975-76. Regarding the assessment year 1974-75, the assessing authority has passed orders on June 24, 1976, imposing tax on the turnover. On appeal by the assessee to the Appellate Assistant Commissioner, the same was allowed on April 27, 1977 in favour of the assessee. Likewise, in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n these writ petitions on various grounds, including the one that the proviso which has come into effect from November 1, 1982 cannot be given effect to in respect of the petitioner's case, since the assessment has already been completed before the expiry of the period of limitation of five years, i.e., on April 27, 1982, and therefore, based on the judgment of the Supreme Court, the show-cause notice would not apply to the petitioner's case in respect of these two assessment years. It is with the abovesaid averments, these writ petitions have been filed challenging the impugned orders of the respondent, which has been passed in exercise of the suo motu powers, in revising the assessment. 5. The learned Special Government Pleader would contend that when the amendment has come into effect, inasmuch as the proviso makes it clear that the period from the date of judgment of the High Court till the date of judgment of the Supreme Court has to be excluded, the period between March 3, 1976 and October 4, 1996 has to be excluded and therefore, the issuance of show-cause notice on April 9, 1997 is well within the period stipulated even under the amended Act. In effect, it is his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f sub-section (2), the time during which the proceedings before Board of Revenue remained stayed under the order of a civil court or other competent authority shall be excluded. 9. It was amended by Act 22 of 1982. After the amendment, by Act 22 of 1982, which came into effect from November 1, 1982, section 34 of the Act stood as follows: S. 34. Special powers of Joint Commissioner of Commercial Taxes.-(1) The Joint Commissioner of Commercial Taxes may, of his own motion, call for and examine an order passed or proceeding recorded by the appropriate authority under section 4A, section 12, section 12A, section 14, section 15 or sub-section (1) or (2) of section 16 or an order passed by the Appellate Assistant Commissioner under sub-section (3) of section 31 or by the Appellate Deputy Commissioner under sub-section (3) of section 31A or by the Deputy Commissioner under sub-section (1) of section 32 and if such order or proceeding recorded is prejudicial to the interests of revenue, may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may initiate proceedings to revise, modify or set aside such order or proceeding and may pass such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has recommended that section 34 of the Act should be amended to specifically provide that suo motu revision can be restricted to cases where the order or proceeding recorded by the appropriate authority or appellate authority is prejudicial to the interests of revenue and the exercise of suo motu revision by the Commissioner of Commercial Taxes shall not become time-barred as a result of pendency of an appeal before the Supreme Court against the decision of the High Court adverse to the Department. The Government have decided to accept the recommendations of the committee and to amend section 34 of the Act and to make similar amendments to section 32 of the Act also relating to the exercise of suo motu revision by the Deputy Commissioner. 11. Therefore, it is clear that the purpose of amendment which was brought in with effect from November 1, 1982, was to protect the revenue, and therefore, there has been a total change in the approach in respect of the implementation of section 34 before its amendment and after its amendment. It is patently clear that after amendment, the law makers wanted to focus upon the more powers given to the Revenue, with which background the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Income-tax, Madras reported in [1956] 29 ITR 848 (Mad); [1956] 2 MLJ 139, the Division Bench reiterated the said legal principle once again. 14. That view has been affirmed subsequently in another Division Bench judgment of this court in Chettinad Corporation (P.) Ltd. v. Commissioner of Income-tax, Madras reported in [1983] 141 ITR 693 (Mad). That was a case where there was a ratification after two years of assessment order by imposing penalty based on the amended law which extended the timelimit. It was held on the facts and circumstances of that case that inasmuch as the amendment has come into existence, within a period of expiration of the limitation under the original Act, the amended Act would apply by relying on the judgment in S.C. Prashar (S.C.) v. Vasantsen Dwarkadas [1963] 49 ITR 1 (SC). In fact, the Bench has relied upon an earlier judgment in Chettinad Corporation (P.) Ltd. v. Commissioner of Income-tax reported in [1983] 141 ITR 693 (Mad). It is appropriate to extract some of the passages in the said judgment, which are as follows (pages 695 and 696 in 141 ITR): We considered a similar question in Commissioner of Wealth Tax v. G. Savithri [1983] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1953, while dealing with section 45O(1) of the Banking Regulation Act, 1949 relating to filing of the suit or application for which the limitation has been prescribed and the effect of such limitation before enforcement of an amendment Act, the Supreme Court has, by following the abovesaid ratio laid down consistently, reiterated the well settled principle that subsequent amendment cannot be given effect to, to an act which has already been completed. 16. In respect of the said Banking Act, 1949, relating to the same section 45O, the Supreme Court, in the subsequent judgment rendered in Official Liquidator, Supreme Bank Ltd. v. P.A. Tendolkar (dead) by L.Rs reported in [1973] 43 Comp Cas 382 (SC); [1973] 1 SCC 602 has held that retrospective effect cannot be given to the amendment Act. The relevant portion reads as follows (pages 392 in 43 Comp Cas): In any case, the amendment of section 45O(2) of the Banking Regulation Act, 1949, Act had conferred a new right of counting the period of limitation from the first appointment of the liquidator. The exercise of that right by the liquidator, acting on behalf of the company certainly took place after the commencement of Act XXXIII ..... X X X X Extracts X X X X X X X X Extracts X X X X
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