TMI Blog1957 (5) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... algamated and the total amount was assessed in the hands of the Hindu undivided family with Sardar Nehchal Singh as the karta. For the assessment year 1945-46 Sardar Lakhmir Singh and Sardar Nehchal Singh filed two separate returns and reiterated their previous claim under section 25A. The claim was rejected by the Income-tax Officer and the total income of Sardar Lakhmir Singh and Sardar Nehchal Singh was assessed as the income of the Hindu undivided family, but there was a protective assessment made upon Sardar Lakhmir Singh as an individual for the income he had returned. There was an appeal taken against the assessment of 1945-46, and on the 15th of October, 1952, the Appellate Tribunal held that the income of the two individuals, namely, Sardar Nehchal Singh and Sardar Lakhmir Singh, was not the income of the Hindu undivided family but their individual income. The Appellate Tribunal, therefore, set aside the assessment of the Hindu undivided family. For the assessment year 1946-47 three returns were filed. The first return was filed by Sardar Lakhmir Singh on the 15th March, 1951, in respect of his separate income. The second return was filed by Sardar Nehchal Singh in his ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry at this stage to set out the relevant statutory provisions of the Indian Income-tax Act. Section 34(3) as it stood before the amendment made by Act 25 of 1953 was to the following effect: 34(3). No order of assessment under section 23 to which clause ( c) of sub-section (1) of section 28 applies or of assessment or re-assesment in cases falling within clause (a) of sub-section (1) of this section shall be made after the expiry of eight years, and no order of assessment or re-assessment in any other case shall be made after the expiry of four years, from the end of the year in which the income, profits or gains were first assessable : Provided that where a notice under sub-section (1) has been issued within the time therein limited, the assessment or re-assessment to be made in pursuance of such notice may be made before the expiry of one year from the date of the service of the notice even if such period exceeds the period of eight years or four years, as the case may be : Provided further that nothing contained in this sub-section shall apply to a re-assessment made under section 27 or in pursuance of an order under section 31, section 33, section 33A, section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a matter of procedural law and although it is open to the Legislature to extend the period of limitation, the amending law cannot be applied to a case where the right is already barred by the previous law of limitation. That is a well-established proposition of law. For instance in Appasami Odayar and Others v. Subramanya Odayar and Others [1887-88] 15 IA 167 it was decided by the Judicial Committee that a suit to recover a share of joint family property not brought within twelve years from the date of the last participation in the profits of it was barred by section 1, clause 13, of Act XIV of 1859 ; and once barred, the right to sue would not be affected by the later Acts of limitation. There is also a similar decision in a subsequent case, Khunni Lal v. Gobind Krishna Narain and Another [1911] ILR 33 All. 356. It is also well established that the presumption against retrospective operation of a statute as regards vested rights applies not merely to substantive rights but applies equally to remedial rights, like rights of action including rights of appeal etc. The principle is clearly stated by the Judicial Committee in Delhi Cloth and General Mills Co. v. Commissioner of Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of retrospective effect. It was said that the Income-tax Officer made the assessment on the 27th November, 1953, in pursuance of the order of the Appellate Assistant Commissioner dated the 20th March, 1953, and at the time when the Income-tax Officer completed the assessment the Amendment Act had come into force and it was the duty of the Income-tax Officer to act under the amended law. In support of his submission learned counsel relied upon Raja Bahadur Kamakshya Narain Singh of Ramgarh v. Commissioner of Income-tax, Bihar [1947] 15 ITR 311 , 317. In my opinion the argument of learned counsel for the Income-tax Department is misconceived. The question at issue is not whether the Income-tax Officer had taken into account the legislative change in procedure since the assessee had filed the income-tax return. The question is whether the Amending Act has retrospective effect so as to reach the case of the assessee. The decision in Raja Bahadur Kamakshya Narain Singh of Ramgarh s case (supra ), is not in point because it was held in that case that the new legislation had a retrospective operation and applied to the case which was pending at the time of the enactment before the App ..... X X X X Extracts X X X X X X X X Extracts X X X X
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