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TATA TELESERVICES Versus UNION OF INDIA & 1

Non deduction of tds - challenge to the notices / summonses issued u/s 201 - period of limitation for passing an order u/s 201 - whether section 201(3) of the Income Tax Act as amended on 1/10/2014 by Finance Act of 2014 would be applicable retrospectively or prospectively - TDS on Tele-Communication Interconnection Usage Charges - Held that:- While amending section 201 by Finance Act, 2014, it has been specifically mentioned that the same shall be applicable w.e.f. 1/10/2014 and even considerin .....

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nding section 201(3) (ii) of the Act as was amended by Finance Act, 2012 with retrospective effect from 1/4/2010, it is to be held that section 201(3), as amended by Finance Act No.2 of 2014 shall not be applicable retrospectively and therefore, no order under section 201(i) of the Act can be passed for which limitation had already expired prior to amended section 201(3) as amended by Finance Act No.2 of 2014. Under the circumstances, the impugned notices / summonses cannot be sustained and the .....

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rdingly in each of the petitions. - Decided in favour of assessee - SPECIAL CIVIL APPLICATION NO. 1623 of 2015, SPECIAL CIVIL APPLICATION NO. 2115 of 2015, SPECIAL CIVIL APPLICATION NO. 4771 of 2015 - Dated:- 5-2-2016 - MR. M.R. SHAH AND MR. S.H.VORA, JJ. FOR THE PETITIONER : MR MIHIR JOSHI SR.ADV. WITH MR VIMAL M PATEL, WITH ANUPAM MISHRA, ADVOCATES, MR PARTH CONTRACTOR, ADVOCATE, MR RK PATEL, ADVOCATE FOR THE RESPONDENT : MR MANISH BHATT WITH MRS MAUNA M BHATT, ADVOCATES CAV JUDGMENT (PER : HO .....

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014, impugned Notices dated 18/12/2014 and impugned Letters dated 18/12/2014, 29/12/2014 and 12/1/2015 issued by the respondent No. 2 are barred by limitation and be pleased to strike down the same as being wholly without jurisdiction; (B) Your Lordships may be pleased to issue a writ, order or directions in the nature of certiorari or any other writ, order or direction of like nature, to call for, examine the records in relation to and quash the impugned Summons dated 9/12.2014, impugned Notice .....

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impugned Letters dated 18/12/2014, 29/12/2014 and 12/1/2015 issued by the Respondent No. 2 at Annexure "A Colly.; (D) Your Lordships may be pleased to issue a writ. order or directions in the nature of Prohibition or any other writ, order or direction of like nature, to quash the impugned Summons dated 9/12/2014, impugned Notices dated 18/12/2014 and impugned Letters dated 18/12/2014, 29/12/2014 and 12/1/2015 issued by the respondent No.2 at Annexure A" Colly.; (E) Your Lordships may b .....

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hips may be pleased to Declare that the Section 2()1 of the Act as amended by the Finance (No.2) Act, 2014 is prospective and does not apply to proceedings where period of passing the orders has expired before 1/10/2014; (H) Pending the hearing and final disposal of the petition Your Lordships may be pleased to stay the impugned Summons dated 9/12/2014, impugned Notices dated 18/12/2014 and impugned Letters dated 18/12/2014, 29/12/2014 and 12/1/2015 issued by Respondent No. 2 at Annexure A Colly .....

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under section 201(1) of the Income Tax Act, (hereinafter referred to as the Act for short) in respect of A.Y. 2008-09 - F.Y. 2007-08, mainly on the ground that the said notices are barred by proviso to section 201(3) of the Act. Therefore, as such, the reliefs sought in the Special Civil Application No. 2115 of 2015b is similar to that of reliefs prayed in Special Civil Application No. 1623 of 2015 but with respect different show cause notices and for different period. 2.02. Special Civil Applic .....

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barred by proviso to section 201(3) of the Act, as the same are issued at different time after expiry of two years from the end of the financial year in which the Statement is filed for the said years. 3.01. The respective petitioners have also prayed to declare that section 201 of the Act as amended by Finance Act, 2014 (Act No.2 of 2014) is prospective and does not apply to the proceedings where period of passing the order has expired before 1/10/2014. 4.00. Mr.Mihir Joshi, learned Senior Adv .....

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ioner in Special Civil Application No. 1623 of 2015 are narrated, discussed and considered. 6.00. Facts leading to the Special Civil Application No. 1623 of 2015 in nutshell are as under 6.01. The petitioner is engaged in the business of providing tele-communication services and selling service products across the country. According to the petitioner, it is governed by Tele-Communication Interconnection Usage Charges Regulation, 2003 issued by TRAI under the TRAI Act, 1997. That the petitioner f .....

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ated 09/10/2014 by respondent No. 2 requiring personal attendance in connection with proceedings under the Income Tax Act for A.Y. 2008-2009 and 2009-2010 seeking details regarding TDS for F.Y. 2007-2008 and 2008-2009. That the petitioner made submissions dated 15/12/2014 and contended that the assessment proceedings sought to be initiated are time barred in view of Section 201(3) of the Act as it stood at the end of the respective FY 2007-2008 and 2008-2009. 6.03. That according to the petition .....

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ection 201(3) of the Finance Act, 2014. 6.04. That the petitioner by reply dated 05/01/2015 reiterated its submissions in respect of the proceeding being time barred. 6.05. That the respondent No. 2 vide letter dated 12/01/2015 gave last opportunity to the petitioner to furnish the factual information as sought by the officer. Hence, the petitioner has preferred the Special Civil Application No. 1623 of 2015. 7.00. The challenge to the impugned notices / summonses which are issued under section .....

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tatement is filed in a case and four years from the end of financial year where the Statement has not been filed. Therefore in the present case a limitation under Section 20l(3)(i) of the Act for passing orders expired on 31/03/2011 and 31/03/2012. (ii)That Section 201(3) of the Act was amended on 28/05/2012 by Finance Act, 2012 with retrospective effect from 01/04/2010 whereby the limitation was substituted from four years to six years for passing the order were the TDS statement had not been f .....

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seven years from the end of financial year in which payment was made. The said amendment is not from retrospective date nor does it specifically say that it is from retrospective effect as it was said at the time of amendment by Finance Act, 2014. Therefore the said amendment as on 01/ 10/2014 is with prospective effect. On the aforesaid grounds and submissions, the respective petitioners have challenged the impugned notices / summonses issued under section 201 of the Act. 8.0.That the amendmen .....

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n behalf of the petitioner has further submitted that the amendment in Section 201(3) of the Act vide Finance Act, 2012 was expressly made retrospective w.e.f. 01/04/2010. However the subsequent amendment in Section 201(3)iof the Act by Finance Act, 2014 is not made expressly with retrospective effect but the plain language of the amended section says that it is w.e.f. 01/10/2014. In support of his above submissions, Mr.Joshi, learned Senior Advocate has heavily relied upon the decision of the H .....

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our of the petitioner which can only be taken away by an express retrospective amendment. Hence the substantive right is conferred by a statute which remains unaffected by subsequent changes in law unless modified expressly or by necessary implication. It is trite law that every gimme is prospective unless it is expressly or by necessary implication made to have retrospective operation. Limitation provision therefore can be procedural in the context of one set of facts but substantive in the con .....

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ontrary intention is discernible from the statute. In support of his above submissions, Mr.Joshi, learned Senior Advocate has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Thirumalai Chemicals Ltd. Versus Union of India & other, reported in 2011(6) SCC 739 (Para 23, 26, 29 to 32) as well as in the case of Yew Bon Tew Versus Kenderaan Bas Mara, reported in (1983) 1 AC 553 (Privy Council). 8.3.Mr.Mihir Joshi, learned Senior Advocate appearing on behalf of the .....

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nless the amended provision is clearly given retrospective operation so as to allow upsetting of proceedings, which had already been concluded and attained finality . Taxing provisions imposing a liability is governed by normal presumption that it is not retrospective and settled principle of law is that the law to be applied is that which is in force in the assessment year unless otherwise provided expressly or by necessary implications. Even a procedural provision cannot in the absence of clea .....

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dvocate appearing on behalf of the petitioner has further submitted that the judgment cited by respondent No. 2 i.e. (i) in the case of Ahmedabad Manufacturing & Calico Printing Co. Ltd. Vs. S. G. Mehta ITO, reported in (1968) 48 [TR 154 and (ii) in the case of Addl. Commissioner Vs. Jyoti Traders & Aur. reported in 1999(2) SCC 77 would not apply in the present case as the interpretation of the amended Section by the Hon ble Supreme Court in the case of Jyoti Traders was in respect of th .....

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essment year or part thereof has escaped assessment to tax or has been under assessed or has been assessed to tax at a rate lower than that at which it is assessable under this Act, or any deductions or exemptions have been wrongly allowed in respect thereof the assessing authority may, after issuing notice to the dealer and making such inquiry as it may consider necessary, assess or re-assess the dealer or tax according to law : Provided that the tax shall be charged at the rate at which it wou .....

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is of reasons recorded by the assessing authority that it is just and expedient so to do authorities 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 eight years from the end of such year notwithstanding that such assessment or re-assessment may involve a change of opinion. " Therefore under the proviso the assessment and reassessment may be made after the expiration of the perio .....

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e making of assessment or reassessment after 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. " 8.5.Mr.Mihir Joshi, learned Senior Advocate appearing on behalf of the petitioner has submitted that as such, there is no conflict between the decision of the Hon'ble Supreme Court in the case of K.M. Sharma (supra) cite .....

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n ble Supreme Court. 8.7.Mr.Mihir Joshi, learned Senior Advocate appearing on behalf of the petitioner has submitted that the judgment relied on by the respondent No. 2 in the case of CTO Vs. Biswanath Jhujhunwala & Anr., reported in 1996(5) SCC 626, for the principles laid down there in would not apply to the present case as the facts in the said judgment are different from the facts of the present case. (a) In the said judgment, assessments were completed on 17/02/1969 and 26/03/1969. Unde .....

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spective effect from 01/11/1971 though notification was dated 30/03/1974. Hence as on 1/11/1971 the period of four years under the unamended rule 80(5) had not expired. In that context at the time when the amended section came into force w.e.f. 1/11/1971, the period of four years i.e. the limitation had not expired and therefore the amended provision in the said judgment would apply to the assessments. In the present case the limitation for the relevant financial year expired on 31/03/2011 and 3 .....

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n made or the order has been filed more than six years previously. Therefore the rule itself provided for previous six years. Hence the language is unambiguous and therefore the court observed that it must be assumed that the legislature intended that the amended provision to apply even to assessments that have so become final. (Para 13). In the present case the amended Section 201 has come into force w.e.f. 01/10/2014 not to pass an order at any time after the expiry of the seven years from the .....

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tend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question. The language used is not to be either stretched in favour of the revenue or narrowed in favour of the assessee. It is essential not to confound what is actually or virtually prohibited or enjoined by the statutory language with what is really beyond the enacting part. The words that have been used in the amended section must appl .....

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tted that even decision of the Hon'ble Supreme Court in the case of N.Ranga Rao and Sons v. State of Karnataka, reported in 2007 (9) SCC 691 and in the case of Thirumalai Chemicals Ltd. Versus Union of India & other, reported in 2011 (6) SCC 379 relied upon by Mr.Bhatt, learned Senior Advocate appearing on behalf of the Income Tax Department contending that the aspect of limitation is a procedural law and same would not apply to the facts of the case as the said judgement do not deal wit .....

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ner in Special Civil Application No. 4771 of 2015 has reiterated what is submitted by Mr.Joshi, learned Senior Advocate appearing on behalf of the petitioner in Special Civil Application No. 1623 of 2015. 10.00. All these petitions are opposed by Mr.M.R. Bhatt, learned counsel appearing on behalf of the revenue - Income Tax Department. 10.01. Mr.M.R. Bhatt, learned counsel appearing on behalf of the revenue has vehemently submitted that as in the present petition the respective petitioners have .....

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decision of this Court in the case of INOX AIR PRODUCTS LTD Versus Union of India and others, rendered in Special Civil Application No. 16725 of 2013. It is submitted that in the aforesaid decision, relying upon the decision of the Hon'ble Supreme Court reported in the case of Bellary Steels & Alloys Ltd. Versus CCT, reported in (2009) 17 SCC 547 as well as in the case of Indo Asahi Glass Co. Ltd. Versus ITO, reported in (2002) 10 SCC 444, this court has not entertained the petitions wh .....

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order shall be made under sub-section (1) deeming a person to be an assessee any default for failure to deduct the whole or any part of the tax from a person resident in India, at any time after the expiry of 7 years from the end of the Financial year in which payment is made or credit is given. It is submitted that, therefore, the Section itself provides for limitation period of 7 years from the end of the financial year in which payment is made or credit is given. It is submitted that in the .....

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yment made or credit given. It is submitted that as compared thereto, the legislature has done away with this distinction and the amendment prescribes a common period of limitation so as to align the time limit with the provision of Section 148 of the Act. 10.04. Mr.M.R. Bhatt, learned counsel appearing on behalf of the revenue has heavily relied upon the Memorandum to the Finance Bill (No.2) 2014. It is submitted that in the Memorandum it is specifically noted that as TDS defaults are generally .....

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Calico Printing Co. Ltd. Versus Income Tax Officer and others); (2).1999(2) SCC 77 (Additional Commissioner Vs. Jyoti Traders); (3).2007 (9) SCC 691 (N.Ranga Rao and Sons v. State of Karnataka) (4).1996 (5) SCC 626 (CTO Versus Bishwanath Jhunjhunwala). 10.06. Mr.M.R. Bhatt, learned counsel appearing on behalf of the revenue has further submitted that in the present case section 201(3) does not provide that the period is available only where limitation has not expired. It is submitted that as suc .....

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od of limitation as provided under section 201(3) as amended by Finance Act (No.2) which provides for 7 years time is not applied, in that case, the purpose and object of amendment in section 201(3) of the Act would be frustrated. 10.08. Mr.M.R. Bhatt, learned counsel appearing on behalf of the revenue has further submitted that as such similar provision is also incorporated in Section I49(1)(c) of the Act providing for a larger period of limitation where foreign assets are involved. 10.09. Now, .....

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34(1)(iii) provided for a period of one year in respect of an agent. It is submitted that by the amended clause (iii), a negative covenant was placed putting an embargo on the assessing officer not to issue a notice after an expiry of two years. It is submitted that it is only by reason of this negative proviso that petition came to be allowed by the Court as can be seen from para 3 of the judgment. It is submitted that In the present case, there is no such negative proviso. It is submitted tha .....

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he revenue has further submitted that the decision of the Hon'ble Supreme Court in the case of K.M. Sharma (supra), which has been heavily relied upon by the learned advocate appearing on behalf of the petitioners, shall not be applicable to the facts of the case on hand. It is submitted that in the aforesaid decision in the case of Ahmedabad Manufacturing & Calico Printing Co. Ltd. (supra) was not brought to the notice of the Hon ble Court which is a Constitution Bench decision. It is s .....

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that the aspect of limitation is a procedural matter. Making above submissions and heavily relied upon the statement and objects of amendment in Section 201(3) of the Act and relying upon the above decisions, it is requested to dismiss the present petitions. 11.00. Heard the learned counsel appearing on behalf of the respective parties at length. 11.01. At the outset, it is required to be noted that in the present petitions, the petitioners have challenged the impugned notices / summonses issued .....

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stion of law is involved, this Court is of the opinion that present petitions cannot be dismissed solely on the ground that the present petitions are against the Show Cause Notices. At this stage decision of the Hon'ble Supreme Court in the case of Harbanslal Sahnia and another Versus Indian Oil Corpn. and others, reported in (2003) 2 SCC 107 (para 7) as well as another decision of the Hon'ble Supreme Court in the case of Filterco and another Versus Commissioner of Sales Tax, Madhya Prad .....

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tion posed for consideration of these petitions is as to, whether section 201(3) of the Income Tax Act as amended on 1/10/2014 by Finance Act of 2014 would be applicable retrospectively or prospectively and whether the said provision would be applicable with respect to the proceedings under the Income Tax Act for A.Y. 2008-09 and 2009-2010?, the proceedings which had already become time barred in view of the provisions of section 201(3) of the Act prior to amendment in section 201(3) of the Act .....

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the principal officer of a company,- (a) who is required to deduct any sum in accordance with the provisions of this Act; or (b) referred to in sub-section (IA) of section 192, being an employer, does not deduct, or does not pay, or after so deducting fails to pay, the whole or any part of the tax, as required by or under this Act, then, such person, shall, without prejudice to any other consequences which he may incur, be deemed to be an assessee in default in respect of such tax: Provided that .....

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o pay simple interest at one per cent for every month or part of a month on the amount of such tax from the date on which such tax was deductible to the date on which such tax is actually paid and such interest shall be paid before furnishing the quarterly statement for each quarter in accordance with the provisions of sub-section (3) of section 20; (2) Where the tax has not been paid as aforesaid after it is deducted, the amount of the tax together with the amount of simple interest thereon ref .....

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visions of this Act; or (b) referred to in sub-section (IA) of section 192, being an employer, does not deduct, or does not pay, or after so deducting fails to pay, the whole or any part of the tax, as required by or under this Act, then, such person, shall, without prejudice to any other consequences which he may incur, be deemed to be an assessee in default in respect of such tax: Provided that no penalty shall be charged under section 121 from such person, unless the Assessing Officer is sati .....

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ax from the date on which such tax was deductible to the date on which such tax is deducted; and (ii) at one and one half per cent for every month or part of a month on the amount of such tax from the date on which such tax was deducted to the date on which such tax is actually paid, and such interest shall be paid before furnishing the statement in accordance with the provisions of sub-section (3) of section 200. (2). Where the tax has not been paid as aforesaid after it is deducted, the amount .....

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atement is filed in a case where the statement referred to in section 200 has been filed; (ii). four years from the end of the financial year in which payment is made or credit is given, in any other case : Provided that such order for a financial year commencing on or before the 1st day of April, 2007 may be passed at any time on or before the 31st day of March, 2011. (4). The provisions of sub-clause (ii) of sub-section (3) of section 153 and of Explanation 1 to section 153 shall, so far as ma .....

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(ii), for the words four years", the words "six years" shall be substituted. The amended Section 201(3) read as under: 201(3). No order shall be made under sub-section (1) deeming a person to be an assessee in default for failure to deduct the whole or any part of the tax from a person resident in India, at any time after the expiry of - (i) two years from the end of the financial year in which the statement is filed in a case where the statement referred to in section 200 has be .....

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under sub-section (1) deeming a person to be an assessee in default for failure to deduct the whole or any part of the tax from a person resident in India, at any time after the expiry of seven years from the end of the financial year in which payment is made or credit is given. As stated hereinabove, question posed before this Court is whether section 201(3) of the Income Tax Act as amended by Finance Act No.2 of 2014 would be applicable prospectively or retrospectively. 12.06. From the afores .....

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s (3) and (4) came to be introduced w.e.f. 1/4/2010 and it provided that an order under section 201(1) for failure to deduct the whole or any part of the tax as required under the Act, if the deductee is a resident payer, shall be passed within two years from the end of the financial year in which statement of tax deducted at source is filed by the deductor. It further provides that where no such statement is filed, said order can be passed up till 4 years from the end of the financial year in w .....

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11 and as such no fresh proceedings could be commenced for the said period. 12.08. The reasons for amendment so stated in the memorandum to the Finance Bill No.2 of 2009 reads as under ; Providing time limits for passing of orders u/s. 201(1) holding a person to be an assessee in default. Currently, the Income Tax Act does not provide for any limitation of time for passing an order u/s. 201(1) holding a person to be an assessee in default. In the absence of such a time limit, disputes arise when .....

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ax deduction at source is filed by the deductor. Where no such statement is filed, such order can be passed up till four years from the end of the financial year in which the payment is made or credit is given. To provide sufficient time for pending cases, it is proposed to provide that such proceedings for a financial year beginning from 1st April, 2007 and earlier years can be completed by the 31st March, 2011. However, no time-limits have been prescribed for order under subsection (1) of sect .....

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2010. Accordingly it will apply to such orders passed on or after the 1st April, 20I0. From the aforesaid chronological events, it appears that section 201(3)(ii) of the Act came to be further amended by Finance Act of 2012, however, with retrospective effect from 1/4/2010 whereby in sub-section (3) in clause (ii), further words four years came to be substituted by words six years . Thus, period for passing order in respect of cases where statement referred to in section 200 of the Act were not .....

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and 31/3/2012, respectively. 12.11. That thereafter, section 201(3) of the Act has been further amended by Finance Act No.2 of 2014 w.e.f. 1/10/2014, by which, time limit provided under section 201(3)(ii) of the Act for passing order under section 201(1) of the Act came to be extended by one year and it also provides that no orders shall be made under sub-section (1) holding a person to be in default for failure to deduct whole or part of the tax from a person resident in India at any time after .....

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.2 of 2014 reads as under : Tax Deduction at Source : Under Chapter X Vll-B of the Act. a person is required to deduct tax on certain specified payments at the specified rates if the payment exceeds specified threshold. The person deducting tax ( the detductor ) is required to file a quarterly statement of tax deduction at source (TDS) containing the prescribed details of deduction of tax made during the quarter by the prescribed due date. Currently, a deductor is allowed to file correction stat .....

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w the deductor to file correction statements. Consequently. it is also proposed to amend provisions of section 200A of the Act for enabling processing of correction statement filed. The existing provisions of section 201(1) of the Act provide for passing of an order deeming a payer as assessee in default if he does not deduct or does not pay or after deduction fails to pay the whole or part of the tax as per the provisions of Chapter XVII-B of the Act. Section 201 (3) of the Act provides for tim .....

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S statement filed by the deductor. Therefore, there there is no rationale for not treating the deductor as assessee in default in respect of the TDS default after two years only on the basis that the deductor has filed TDS statement as TDS defaults are generally in respect of the transaction not reported in the TDS statement. It is, therefore, proposed to omit clause (i) of sub-section (3) of section 201 of the Act which provides time limit of two years for passing order under section 201(1) of .....

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, section 148 of the Act allows reopening of cases of one more preceding previous year than specified under section 201(3)(ii) of the Act. Due to this, order under section 201(1) of the Act cannot be passed in respect of defaults relating to TDS which comes to the notice during search/reassessment proceeding in respect of previous year which is not covered under section 201(3)(ii) of the Act for passing order under section 201(1) of the Act shall be extended by one more year. The existing provis .....

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14. At this stage, it is required to be noted that earlier section 201(3) of the Act as amended by Finance Act, 2012 amended on 28/5/2012 was specifically made applicable retrospectively w.e.f. 1/14/2012, whereby limitation period was substituted from four years to six years for passing orders where TDS Statement had not been filed. However, section 201(3) of the Act as amended by Finance Act No.2 of 2014, as mentioned in the memorandum of the Finance Bill No.2 of 2014 is stated to have effect f .....

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hereinabove, in the present cases, limitations provided for passing order under section 201(1) of the Act for A.Y. 2007-08 and 2008-09 had already been expired on 31/3/2011 and 31/3/2012, respectively, i.e. prior to section 201(3) came to be amended by Finance Act No.2 of 2014. 13.00. In the backdrop of the above facts, few decisions of the Hon'ble Supreme Court on the point and more particularly, with respect to retrospective applicability of the provisions of the Act are required to be re .....

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Hon'ble Supreme Court had an occasion to consider the question, as to, whether in case where the right to assess or reassess has lapsed on account of expiry of the period of limitation prescribed under the earlier statute, the Income Tax Officer can exercise his powers to assess or reassess under the amending statute which gives an expressly period of limitation and to that, the Hon'ble Supreme Court has noted decision of the Calcutta High Court in the case of Calcutta Discount Company L .....

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rtain whether it was the intention of the Legislature to deprive a tax payer of the plea that action for assessment or re-assessment could not be commenced, on the ground that before the amending Act became effective, it was barred. Therefore the view that even when the right to assess or reassess has lapsed on account of the expiry of the period of limitation prescribed under the earlier statute, the Income-tax Officer can exercise his powers to assess or re-assess under the amending statute wh .....

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an agent of a foreign party under S. 43 within two years from the end of the year of assessment. But authority of the Income-tax Officer under the Act before it was amended by the Finance Act of 1956 having already come to an end, the amending provision will not assist him to commence a proceeding even though at the date when he issued the notice it is within the period provided by that amending Act. This will be so, notwithstanding the fact that there has been no determinable point of time bet .....

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fficer to commence proceedings which before the new Act came into force had by the expiry of the period provided become barred. 13.02. A similar view has been taken by the Hon'ble Supreme Court in the case of J. P. Jani, Income Tax Officer, Circle IV, Ward-G, Ahmedabad and another, versus Induprasad Deveshanker Bhatt, reported in AIR 1969 S.C. 778 and while interpreting section 297(2)(d)(ii) of the Income Tax Act, after considering the earlier decision of the Hon'ble Supreme Court in the .....

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Act was wide in its sweep and it took in all assessment years after the year ending on 31st March, 1940 irrespective of the question whether the right to reopen the assessment in respect of any such assessment years was barred or not under the old Act at the date when the new Act came into force. According to Mr. Narasaraju the legislative intention was that once the new Act came into force, the question whether the assessment in respect of any assessment year after the year ending on 31st March .....

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t before the new Act came into force. In our opinion it is not permissible to construe Section 297 (2) (d) (ii) of the Act as reviving the right of the Income Tax Officer to reopen the assessment which was already barred under the old Act. The reason is that such a construction of Section 297 (2) (d) (ii) would be tantamount to giving of retrospective operation to that Section which is not warranted either by the express language of the Section or by necessary implication. The principle is based .....

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ing in S. 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 re-open 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 un .....

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to the assessment year 1954-55. Under clause (iii) of the proviso to Section 34 (1) as it stood prior to its amendment by the Finance Act, 1956, a notice of assessment or reassessment could not be issued against a person deemed to be an agent of a nonresident after the expiry of one year from the end of the year of assessment. The right to commence a proceeding for assessment against the assessee as agent of a non-resident for the assessment year 1954- 55 therefore ended on 31st March, 1956 unde .....

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ed on behalf of the Income Tax Officer that the notice issued by him was within the terms of the amended provision and was, therefore, a valid notice. Now the notice issued on 27th March, 1957 was clearly within a period of two years from the end of the assessment year 1954-55 and if the amended provision applied, the notice would be a valid notice. It was, however, held by this Court that notice was not a valid notice inasmuch as the right of the Income Tax Officer to re-open the assessment of .....

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pointed out, the right to commence a proceeding for assessment against the assessee as an agent of a non-resident party under the Income Tax Act before it was amended, ended on March 31, 1956. It is true that under the amending Act by Section 18 of the Finance Act, 1956, authority was conferred upon the Income Tax Officer to assess a person as an agent of a foreign party under Section 43 within two years from the end of the year of assessment. But authority of the Income Tax Officer under the A .....

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ce Act 1956, only a limited retrospective operation, i. e. up to April 1, 1956 only. That provision must be read subject to the rule that in the absence of an express provision or clear implication, the legislature does not intend to attribute to the amending provision a greater retrospectivity than is expressly mentioned, nor to authorize the Income Tax Officer to commence proceedings which before the new Act came into force had by the expiry of the period provided become barred". 6. In ou .....

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icer, Ahmedabad were illegal and ultra vires and were rightly quashed by the Gujarat High Court by the grant of a writ. 13.03. In the case of New India Insurance Comnpany Ltd. versus Smt. Shanti Misra, Adult reported in (1975) 2 SCC 840, in para 7 the Hon'ble Supreme Court has observed and held as under : 7. In our opinion taking recourse to the proviso appended to sub-section (3) of Section 110A for excusing the delay made in the filing of the application between the date of the accident an .....

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ot; within the meaning of the proviso. The time taken between the date of the accident and the constitution of the Tribunal cannot be condoned under the proviso. Then, will the application be barred under sub-section (3) of Section 110A? Our answer is in the negative and for two reasons: (1) Time for the purpose of filing the application under Section 110A did not start running before the constitution of the Tribunal. Time had started running for the filing of the suit but before it had expired .....

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a longer period cannot revive a dead remedy. Nor can it suddenly extinguish vested right of action by providing for a shorter period of limitation. 13.04. In the case of Thirumalai Chemicals Limited versus Union of India and Others reported in (2011) 6 SCC 739, while discussing the law of limitation, the Hon'ble Supreme Court in paragraph Nos.29 to 33 has observed and held as under : Law of Limitation 29. Law of limitation is generally regarded as procedural and its object is not to create a .....

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or enforcing cause of action accrued earlier, but they are prospective in the sense that neither have the effect of reviving the right of action which is already barred on the date of their coming into operation, nor do they have effect of extinguishing a right of action subsisting on that date. Bennion on Statutory Interpretation 5th Edn.(2008) Page 321 while dealing with retrospective operation of procedural provisions has stated that provisions laying down limitation periods fall into a speci .....

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mmenced before or after the passing of the Act and even in respect of previously accrued rights. The principle laid down in The Ydun was applied in The King v. Chandra Dharma (1905) 2 KB 335 and it was held that if a statute shortening the time within which proceedings can be taken is retrospective then it is impossible to give good reason, why a statute extending the time within which proceedings be taken, should not be held to be retrospective. 31.The Judicial Committee of Privy Council in Yew .....

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on, 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 operation unless a contrary intention is discernible from the statute. Therefore, unless the language clearly manif .....

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one delay under the proviso to sub-section (2) of Section 19 are matters of procedure and act retrospectively, so as to cover causes of action which arose under FERA. 13.05. At this stage, decision of the Judicial Committee of the Privy Council in the case of Yew Bon Tew also known as Yong Boon Tiew Versus Kenderran Bas Mara, reported in 1983 (1) A.C. 553 is required to be referred to and considered. In the aforesaid decision, Privy Council has observed and held as under : A statute of limitatio .....

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in theory so that, in the case of a debt, if the statute-barred creditor has any means of enforcing his claim other than by action or set-off, the Act does not prevent his recovering by those means. In this sense, the 1948 Ordinance and the 1974 Act are procedural. Cf. Harris Vs. Quine (1869) L.R. 4 Q.B. 653 and Rodriguez Vs. Parker [1967] 1 Q.B. 116. Apart from the provisions of the Interpretation Statutes, there is at common law a prima facie. Rule of construction that a statute should not be .....

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rse of procedure, but only a right to prosecute or defend a suit according to the rules for the conduct of an action for the time being prescribed. But these expressions retrospective and procedural , though useful in a particular context, are equivocal and therefore can be misleading. A statute which is retrospective in relation to one aspect of a case (e.g. because it applies to a pre-statute cause of action) may at the same time be prospective in relation to another aspect of the same case (e .....

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having regard to the normal canons of construction and to the relevant provisions of any interpretation statute. From authorities cited, it is my considered judgment that whether the prospective or retrospective Rule of construction should apply depends on the nature of the new statute or amending statute. If it is purely a procedural statute and does not deal with substantive rights then the retrospective Rule of construction should apply. But where the statute deals with substantive rights, o .....

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ng the view that the Act, though retrospective in relation to a cause of action, was prospective in relation to an action to enforce that cause of action. Their Lordships mention the learned judge's comment only to illustrate the different senses in which a statute can be said to be retrospective or prospective. The Defendants appealed. The Federal Court adopted a more flexible approach to the "procedural" test: - "The pertinent question for determination is the nature of [the .....

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tention, should not be read as acting retrospectively. The distinction between procedural matters and substantive rights must often be of great fineness. Each case therefore must be looked at subjectively; there will inevitably be some matters that are classified as being concerned with substantive rights which at first sight must be considered procedural and vice versa." The Federal Court developed this line of reasoning by referring to part of the judgment of Williams J. in Maxwell Vs. Mu .....

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he time is enlarged whilst a person is still within time under the existing law to institute a cause of action the statute might well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action, the abridgment might again be classed as procedural. But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged s .....

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ffect substantive rights . Whether a statute has a retrospective effect cannot in all cases safely be decided by classifying the statute as procedural or substantive. For example, in "The Ydun" case the barque might have grounded on 13 May instead of 13 September 1893 and the Act might have come into force on 5 December 1893 when it received the Royal Assent, instead of 27 days later. Had those been the facts the Act would, if its procedural character were the true criterion of its eff .....

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is not to decide what label to apply to it, procedural or otherwise but to see whether the statute, if applied retrospectively to a particular type of case, would impair existing rights and obligations. The Appellants assert that a Limitation Act does not impair existing rights because the cause of action remains, on the basis that all that is affected is the remedy. There is logic in the distinction on the particular facts of "The Ydun" case, because the right to sue remained, for a w .....

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on, ultimately it is ruled that an accrued right to plead a time barred which is acquired after the lapse of the statutory period is in every sense a right even though it arises under an Act which is procedural. It is further observed and ruled that it is right which is not to be taken away by conferring on the statute a retrospective operation unless such a construction is unavoidable. 13.06. In the case of K.M. Sharma versus Income Tax Officer, Ward 13(7), New Delhi reported in 2002 (4) SCC 33 .....

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imitation cannot be held to be open for revival unless the amended provision is clearly given retrospective operation so as to allow upsetting of proceedings, which had already been concluded and attained finality. The amendment to sub-section (1) of Section 150 is not expressed to be retrospective and, therefore, has to be held as only prospective. The amendment made to subsection (1) of Section 150 which intends to lift embargo of period of limitation under Section 149 to enable Authorities to .....

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nstruction of the provisions of Section 150(1) and the effect of its operation from 1- 4-1989, we are clearly of the opinion that the provisions cannot be given retrospective effect prior to 1-4-1989 for assessments which have already become final due to bar of limitation prior to 1-4-1989. Taxing provision imposing a liability is governed by normal presumption that it is not retrospective and settled principle of law is that the law to be applied is that which is in force in the assessment year .....

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to reopen assessments, which have become final due to bar of limitation prior to 1-4-1989 and this position is applicable equally to reassessments proposed on the basis of Orders passed under the Act or under any other law. 13.07. In the case of Manan Corporation Vs. Assistant commissioner of Income-tax, reported in 356 ITR 44, the Division Bench of this court in para 28 and 30 has observed and held as under :- 28. ... In the case of Commissioner of Income-Tax vs. Gold Coin Health Food P. Ltd. .....

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ns. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only - 'nova constitutio futuris forman imponere debet non praeteritis' - a new law ought to regulate what is to follow, not the past. (See Principles of Statutory Interpretation by Justice G. P. Singh, 9th Edn., 2004 at page 438.) It is not necessary that an express provision be made to make a statute retrospective and the presumption ag .....

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ly an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well-settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended... An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect (ibid., pages 468-69). 15. Though retrospectivity is not to be presumed and rat .....

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on having been expressly given, the courts may be called upon to construe the provisions and answer the question whether the Legislature had sufficiently expressed that intention giving the statute retrospectively. Four factors are suggested as relevant : (i) general scope and purview of the statute; (ii) the remedy sought to be applied; (iii) the former state of the law; and (iv) what it was the Legislature contemplated (page 388). The rule against retrospectivity does not extend to protect fro .....

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mpetence but is also subject to the question of competence but is also subject to several judicially recognized limitations with some of which we are at present concerned. The first is the requirement that the words used must expressly provide or clearly imply retrospective operation. The second is that the retrospectivity must be reasonable and not excessive or harsh, otherwise it runs the risk of being struck down as unconstitutional. The third is apposite where the legislation is introduced t .....

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ted to stand under the reenacted law. Sometimes the Legislature gives its own meaning and interpretation of the law under which tax was collected and by legislative fiat makes the new meaning binding upon Courts. The Legislature may follow anyone method or all of them. 17. A validating clause coupled with a substantive statutory change is therefore only one of the methods to leave actions unsustainable under the unamended statute, undisturbed. Consequently, the absence of a validating clause wou .....

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g that the said provision cannot be given retrospective effect prior to 1/4/1989 for assessments which have already become final due to bar of limitation prior to 1/4/1989, in paragraph Nos.14 and 21 the Hon'ble Supreme Court has observed and held as under :- 14. Fiscal statute more particularly on a provision such as the present one regulating period of limitation must receive strict construction. Law of limitation is intended to give certainty and finality to legal proceedings and to avoid .....

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d as only prospective. The amendment made to subsection (1) of Section 150 which intends to lift embargo of period of limitation under Section 149 to enable Authorities to reopen assessments not only on the basis of Orders passed in proceedings under the IT Act but also on Order of a Court in any proceedings under any law has to be applied prospectively on or after 1-4- 1989 when the said amendment was introduced to subsection (1). The provision in sub-section (1) therefore can have only prospec .....

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is governed by normal presumption that it is not retrospective and settled principle of law is that the law to be applied is that which is in force in the assessment year unless otherwise provided expressly or by necessary implication. Even a procedural provision cannot in the absence of clear contrary intendment expressed therein be given greater retrospectivity than is expressly mentioned so as to enable the Authorities to affect finality of tax assessments or to open up liabilities, which ha .....

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Ahmedabad Manufacturing & Calico Printing Co. Ltd. (supra) as well as another decision of the Hon'ble Supreme Court in the case of Jyoti Traders (supra), by the learned counsel appearing on behalf of the revenue is concerned, on facts and considering the provisions which came to be considered by the Hon'ble Supreme Court in the aforesaid decisions, none of the aforesaid decisions shall be applicable to the facts of the case on hand. In the case of Jyoti Traders (supra), the Hon' .....

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14, more particularly when it has been expressly provided and/or made prospective w.e.f. 1/4/2010. 14.01. Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Biswanath Jhujhunwala & Anr. (supra) by the learned counsel appearing on behalf of the revenue is concerned, considering the language used in the notification which felt for consideration by the Hon'ble Supreme Court and observations made by the Hon'ble Supreme Court in para 12 an .....

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