TMI Blog2004 (11) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... he court was delivered by J.B. Koshy J.- Whether proceedings for imposing tax or reopening assessment for the assessment years which have attained finality under the existing law due to bar of limitation can be revived by the amendment of law which has no express provision of retrospective effect is the question to be considered in this case. Senior advocate, Sri V. Ramachandran, appeared for the appellant, and Sri P. K. Ravindranatha Menon, senior standing counsel, for the Income-tax Department, appeared for the respondents. The appellant/petitioner is an unregistered firm and was a lessee of a rubber estate called "Velanikkara Estate" which was acquired by the Government for establishing an Agricultural University. The Government took possession of the estate in 1973 and determined the compensation in March 1974. Being a lessee of the land, the petitioner's share was assessed as Rs. 9,58,192. Not being satisfied, the matter was taken for reference under section 18 of the Land Acquisition Act and finally this court by judgment in L.L.A No. 247 of 1980 dated January 28, 1987, awarded compensation including solatium of Rs. 17,59,342 as the petitioner's share with interest as provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 89, only the amended section will apply and the demand can be made within a period of ten years. It is well settled law that no tax in terms of article 265 of the Constitution of India can be imposed, levied or collected except by the authority of law. When the wordings are clear, one has to go by the language used by the Legislature. In Cape Brandy Syndicate v. IRC [1921] 1 KB 64 at page 71 it is stated as follows: "... in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used." In State of West Bengal v. Kesoram Industries Ltd. [2004] 266 ITR 721 (SC); [2004] 2 RC 298; [2004] 10 SCC 201, the above principle was accepted by the hon'ble apex court of India. As held in Wm. Cory and Son Ltd. v. IRC [1965] 1 All ER 917 (HL), a taxing or a fiscal statute demands strict construction. It must never be stretched against a taxpayer. So long as the natural meaning for the charging section is adhered to and when the law is certain, then, a strange meaning thereto should not be give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under subsection (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment for that assessment year...." Section 149 before amendment read as follows: "149. Time limit for notice.- (1) No notice under section 148 shall be issued,- (a) in cases falling under clause (a) of section 147- (i) for the relevant assessment year, if eight years have elapsed from the end of that year, unless the case falls under sub-clause (ii); (ii) for the relevant assessment year, where eight years, but not more than sixteen years, have elapsed from the end of that year, unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to rupees fifty thousand or more for that year; (b) in cases falling under clause (b) of section 147, at any time after the expiry of four years from the end of the relevant assessment year..." Section 149 was also substituted with effect from April 1, 1989. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the asses-see is that at the time when the amendment came, the assessment prior to four years of the amendment is a finalised issue as no notice was issued before the amendment and in view of the clear provisions of section 147(b) read with section 149, no further assessments can be made on the assessee. In such circumstances, the amended provision has no application. It is also submitted that if it was not time barred on the date when the amendment came, then the Department would have been justified in using the amended provisions of section 147 in reopening the assessment within the time prescribed under the new section. Various decisions were pointed out to substantiate this argument. We note that a similar contention was considered by a three member Bench of the apex court as early as in 1964 in S. S. Gadgil v. Lal and Co. [1964] 53 ITR 231. After considering the case law the Supreme Court held as follows: "In considering whether the amended statute applies, the question is one of interpretation, i.e., to ascertain whether it was the intention of the Legislature to deprive a taxpayer of the plea that action for assessment or reassessment could not be commenced, on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me. It is the assessee's contention that if the notice was issued within the time prescribed under the old law or the time for assessment has not expired at the time when the amendment came into force, the new provisions would apply. But, here admittedly, when the amendment came, the time for assessment or reassessment as provided under section 147 read with section 149 was over and the liability for assessment was completely extinguished. The amendment was not made retrospectively and as held by the Supreme Court in the case of S.S. Gadgil [1964] 53 ITR 231, we are of the opinion that the amended provisions will not come to the rescue of the Department. Liability that was extinguished due to time bar cannot be resurrected or revalidated by the prospective amendment. In this connection, learned counsel for the appellant also cited a Division Bench decision of this court in CIT v. Vaikundom Rubber Co. Ltd. [2001] 249 ITR 19. We are of the view that the matter is beyond the controversy in view of the Supreme Court decision in this matter explaining the effect of very same amendment of sections 149 and 150 in K. M. Sharma v. ITO [2002] 254 ITR 772 (SC). Dicta of the above decisions ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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