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2016 (10) TMI 98

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..... ed is that the substitution had to take effect from 01.04.2008. We may record that the Finance Act 2008 received assent of the President on 10.05.2008 and was published in official gazette on the same day. By 10.05.2008 therefore, this provision formed part of the statute and was given effect of 01.04.2008. For two reasons the contention of the petitioner cannot be accepted that such a provision cannot be applied to the petitioner. Firstly, on the date when such notice was being issued, the amended provision had already come into force. More particularly, this amendment was made effective from 01.04.2008 by the law which was passed on 10.05.2008 and thus, both the events took place long before the last date for serving of notice in case of the petitioner as per the unamended provision. We may recall, as per the unamended provision such a notice could be served latest by 31.08.2008. Long before that, the statutory provision underwent a change by virtue of which such a notice could be served latest by 30.09.2008. The Assessing Officer was, thus, authorized to issue such a notice as per the amended provision. He was not bound by the unamended provision since the same had already been .....

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..... ould be relevant. By amendment, the law cannot take away vested right. He contended that the retrospective amendment cannot take away rights of a citizen which are crystallized. Therefore, a notice which had become barred by limitation after 31.08.2008 could not have been issued relying on the amended provision of section 143(2) of the Act. In this context, the counsel relied on the decision of Supreme Court in case of K.M.Sharma vs. Income Tax Officer reported in 254 ITR 772. 5. On the other hand, learned counsel for the Revenue submitted that the period of limitation was extended for issuance of notice under section 143(2) of the Act and such period would apply in the present case. He relied on the decision of Division Bench of P H High Court in case of Amarjit Singh Tut vs. Union of India and ors reported in 347 ITR 585. 6. Section 143 of the Act, as is well known, pertains to assessment. Sub section (1) thereof provides the method of processing a return filed by the assessee under section 139 of the Act or in response to a notice under sub-section (1) of Section 142. Under sub section 2 of section 143, whenever in case of a return under section 139 or in response to not .....

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..... may record that the Finance Act 2008 received assent of the President on 10.05.2008 and was published in official gazette on the same day. By 10.05.2008 therefore, this provision formed part of the statute and was given effect of 01.04.2008. For two reasons the contention of the petitioner cannot be accepted that such a provision cannot be applied to the petitioner. Firstly, on the date when such notice was being issued, the amended provision had already come into force. More particularly, this amendment was made effective from 01.04.2008 by the law which was passed on 10.05.2008 and thus, both the events took place long before the last date for serving of notice in case of the petitioner as per the unamended provision. We may recall, as per the unamended provision such a notice could be served latest by 31.08.2008. Long before that, the statutory provision underwent a change by virtue of which such a notice could be served latest by 30.09.2008. The Assessing Officer was, thus, authorized to issue such a notice as per the amended provision. He was not bound by the unamended provision since the same had already been amended long before the final date for serving of notice even as pe .....

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..... y to pending proceedings. S.S.Gadgil [1964] 53 ITR 231 (SC) deals with the principle that an amendment has to be prospective and does not have the effect of reviving proceedings which may have become time barred. There is no dispute with this proposition. In the present case, proceedings had not become time barred before the amendment came into force. In K.M. Sharma [2002] 254 ITR 772 (SC), it was observed that principle of strict interpretation of the taxing statute applies also to law regulating limitation. Virtual Soft [2007] 289 ITR 83(SC) deals with the general principle of an amendment being prospective in the absence of express or implied intention to the contrary. Judgments in Ajantha Industries [1976] 102 ITR 281 (SC) and Rajesh Mahajan [2002] 257 577 (P H) do not deal with the issue of limitation. Greenworld Corporation [2009] 314 ITR 81 (SC) only holds that reassessment has to be within limitation and that the assessment order could not be passed at the instance of a higher authority. It has been further held that effect of jurisdiction in the context of transfer under section 120 of the Act would be governed by the principle akin to section 21 CPC and in absence of an .....

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..... 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 sub-section (1). The provision in sub-section (1) therefore can have only prospective operation to assessments, which have not become final due to expiry of period of limitation prescribed for assessment under section 149 of the Act. 14. To hold that the amendment to sub-section (1) would enable the Authorities to reopen assessments, which had already attained finality due to bar of limitation prescribed under Section 149 of the Act as applicable prior to 1.4.1989, would amount to giving sub-section (1) a retrospective operation which is neither expressly nor impliedly intended by the amended sub-section. 12. It can thus be seen that the issue before the Supreme Court in case of K.M. Sharma (supra) was vastly different and the ratio laid down therein would not apply in facts of the present case. 13. In the result, the petition is dismissed. Rule .....

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