TMI Blog2015 (9) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... rce. It has to be borne in mind that law of limitation when affects substantial rights of a party, such subsequent amendment should not be read as retrospectively unless the amendment so stipulates or requires so by necessary implication. It has been held in Biswanath Jhunjhunwalla [1996 (8) TMI 511 - Supreme Court of India] when the intendment of the legislature is clear and the language is unambiguous or it impliedly follows, then full effect should be given and the provision be treated as retrospective. The amendment, as we perceive, is not only beneficial to the assessee but also intends to protect the interest of the revenue. Prior to this amendment, the period of limitation was eight years. There could be cases which were pending by virtue of issue of notice as the earlier limitation period was eight years under the pre-amended proviso. The intention of the latter part of the proviso is to save such pending assessments and that is why a specific date, that is, March 31, 2002 has been incorporated. While reducing the period from eight years to six years, time has been specified to complete the assessment or reassessment by 31.3.2002. The making of assessment is an extre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue, at a later stage it discovered that the total sale amount of the scooters in question was in fact ₹ 4,26,94,276.59 instead of ₹ 5,23,93,337.57 and hence the assessee was liable to pay tax on the sale of scooters to the extent of ₹ 97,02,050.65 on which it had earlier been granted sales tax waiver in view of the circular dated 16.4.1994. 2. Treating the original assessment as defective, a show cause notice dated 13.3.2002 was issued to the appellant fixing the date of 18.3.2002 requiring the assessee to show cause to offer explanation why a proceeding under Section 21(2) of the Act should not be initiated against it and the tax component should not be realised. 3. The assessee filed its reply on 18.3.2002 taking two grounds, namely, (i) that the proceedings under Section 21(2) of the Act could not be initiated against it as the same was barred by limitation being initiated after lapse of six years from the date of end of assessment year i.e. 31.3.1997 in the light of the proviso to sub-section 2 of Section 21 of the Act and (ii) the books of accounts were examined during the original assessment proceeding by the Assessing Officer as is manifest from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, after the amendment, a proviso was added to Sub-section (2) under which Commissioner of Sales Tax authorises the assessing authority to make assessment or reassessment after the expiration of aforesaid period but not after 8 years from the end of such year notwithstanding that such assessment or reassessment may involve a change of opinion. The proviso came into force w.e.f. February 19, 1991. This proviso was further amended and six years from the end of such year or March 31, 2002 whichever is later were substituted in place of words eight years from such year . In view of IInd proviso the assessment or reassessment for the year 1987-88 may be made till 31.3.1993 and as per IVth proviso the assessment or reassessment for the year 1989-90 may be made till 31.3.1995. We do not think that sub-section (2) and the proviso added to it leave anyone in doubt that as on the date when the amended proviso came into force, the Commissioner of Sales Tax could authorise making of assessment or reassessment after the expiration of six years from such year, i.e. upto 31.3.1999 or March 31, 2002 whichever is later. It is immaterial if a period for assessment or reassessment under sub-sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court dismissed the writ petition. Hence, the present appeal by special leave. 9. We have heard Mr. Pawanshree Agrawal, learned counsel for the appellant and Mr. Ravi Prakash Mehrotra, learned counsel for the respondents. 10. To appreciate the controversy it is appropriate to reproduce Section 21(2), as amended, in entirety. Section 21 - Assessment of tax on the turnover not assessed during the year (2) Except as otherwise provided in this section, no order of assessment or re-assessment under any provision of this Act for any assessment year shall be made after the expiration of two years from the end of such year or March 31, 1998, whichever is later: Provided that if the Commissioner, on his own or on the basis of reasons recorded by the assessing authority, is satisfied that it is just and expedient so to do, authorises the Assessing Authority in that behalf, such assessment or re-assessment may be made after the expiration of the period aforesaid, but not after the expiration of [six years from the end of such year or March 31, 2002, whichever is later] notwithstanding that such assessment or re-assessment may involve a change of opinion: Prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention has been put forth that a notice to show cause has rightly not been interfered with by the High Court in exercise of the writ jurisdiction in view of the judgments rendered in State of U.P. v. Anil Kumar Ramesh Chandra Glass Works (2005) 11 SCC 451, State of Orissa v. Sangram Keshari Misra (2010) 13 SCC 311, and Ministry of Defence v. Prabhash Chandra Mirdha (2012) 11 SCC 565. 12. First, we shall refer to the decision in Jyoti Laboratories (supra). In the said case, the assessment in respect of the assessment year 1985-86 under the Act was completed on 27.11.1989 and in respect of Jyoti Traders, the assessment for the said year was completed on 28.2.1990. The period for assessment or reassessment which was four years under Section 21 of the Act for the assessment year 1985-86 expired on 31.3.1990 in respect of the assessee-Jyoti Traders. The court took note of the fact that the amending Act had received assent of the Governor of the Uttar Pradesh on 19.8.1991 and different dates were prescribed for coming into force of various provisions of the amending Act. Section 21 of the Act that underwent an amendment and the court was concerned with the relevant provision which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. It was also opined by the High Court that the amended notification neither expressly nor by necessary implication confer any power of revision of assessment which stood barred on the date on which it was issued. This Court after referring to the decisions in ITO v. S.K. Habibullah (1962) 44 ITR 809 = AIR 1962 SC 918, S.S. Gadgil, ITO v. Lal and Co. (1964) 53 ITR 231 = AIR 1965 SC 171 and ITO v. Induprasad Devshanker Bhatt (1969) 72 ITR 595 = AIR 1969 SC 778, opined thus:- 12. What, therefore, we have to seek is the clear meaning of the said Notification. If there be no doubt about 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 given with effect from 1-11-1971, 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. 13. By reason of the said Notification, with effect from 1-11-1971, Rule 80(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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording to law. Sub-section (2) provided that except as otherwise provided in this section, no order for any assessment year shall be made after the expiry of 4 years from the end of such year. However, after the amendment, a proviso was added to sub-section (2) under which the Commissioner of Sales Tax authorises the assessing authority to make assessment or reassessment before the expiration of 8 years from the end of such year notwithstanding that such assessment or reassessment may involve a change of opinion. The proviso came into force w.e.f. 19-2-1991. We do not think that sub-section (2) and the proviso added to it leave anyone in doubt that as on the date when the proviso came into force, the Commissioner of Sales Tax could authorise making of assessment or re- assessment before the expiration of 8 years from the end of that particular assessment year. It is immaterial if a period for assessment or reassessment under sub-section (2) of Section 21 before the addition of the said proviso had expired. Here, it is the completion of assessment or reassessment under Section 21 which is to be done before the expiration of 8 years of that particular assessment year. Read as it is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not only to assessments which were incomplete but also to assessments which had reached finality by reason of the earlier prescribed period of four years having elapsed. The Court further opined where language was unambiguous as Rule 80(5)(ii), it must be assumed that the legislature intended the amended provision to apply even to assessments that had become final, for if the intention was otherwise, the legislature would have so stated. 16. In the case at hand the proviso that has been amended on 30.4.2001 and the previous provision that contained the words eight years from the end of such year have been substituted by six years from the end of such year or March 31, 2002 whichever is later . It is apt to note here that the assessment year in question is 1990-91 or year ending 31.3.1991. Original assessment order is dated 25.2.1995 and the notice for reassessment is dated 13.3.2002. For the purpose of limitation under Section 21(1) and the first proviso, the period of limitation is to be counted from the end of the relevant assessment year i.e. 31.3.1991. Thus, the notice dated 13.3.2002 was beyond six years or even eight years of the end of assessment year i.e. 1990-91. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut removing the statutory basis of the decision. There is no fixed formula for the expression of legislative intent to give retrospectivity to an enactment. A validating clause coupled with a substantive statutory change is only one of the methods to leave actions unsustainable under the unamended statute, undisturbed. Consequently, the absence of a validating clause would not by itself affect the retrospective operation of the statutory provision, if such retrospectivity is otherwise apparent. 18. In Thirumalai Chemicals Ltd. v. Union of India (2011) 6 SCC 739, it has been held thus:- Limitation provisions therefore can be procedural in the context of one set of facts but substantive in the context of different set of facts because rights can accrue to both the parties. In such a situation, test is to see whether the statute, if applied retrospectively to a particular type of case, would impair existing rights and obligations. An accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is nevertheless a right, even though it arises under an Act which is procedural and a right which is not to be taken away pleading retrospective opera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive, but on a closer scrutiny, the fallacy in the interpretation becomes clear. As far as six years is concerned, as stated earlier, there can be no difficulty. The State legislature has intentionally reduced the period from eight years to six years. Such reduction of period is definitely beneficial for the assessee. It is worth noting the period was reduced to six years, however, in the language used, the outer limit has been fixed either six years or March 31, 2002 and, therefore, the latter part of the proviso also specifying the date 31st March, 2002 has to be appositely interpreted. The amendment, as we perceive, is not only beneficial to the assessee but also intends to protect the interest of the revenue. Prior to this amendment, the period of limitation was eight years. There could be cases which were pending by virtue of issue of notice as the earlier limitation period was eight years under the pre-amended proviso. The intention of the latter part of the proviso is to save such pending assessments and that is why a specific date, that is, March 31, 2002 has been incorporated. While reducing the period from eight years to six years, time has been specified to complete the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
