TMI Blog2019 (7) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction. Moreover, if executive authority exercised the power without jurisdiction that would subject an individual to lengthy proceedings and unnecessary harassment. Hence, to prevent such lengthy proceedings and unnecessary harassment, recourse to jurisdiction under Article 226 and/or227 of the Constitution is not prohibited. Further, the legislative drafting is more than an ordinary prose which differs in provenance, features and its import as to the meaning attached thereto and presumptions as to intendment of the legislation. By now, it is well settled law that unless a contrary intention is reflected, a legislation is presumed and intended to be prospective. For in the normal course of human behavior, one is entitled to arrange his affairs keeping in view the laws for the time being in force and such arrangement of affairs should not be dislodged by retrospective application of law. The principle of law known as lex prospicit non prospicit (law looks forward not backward), is a well known and accepted principle. The retrospective legislation is contrary to general principle for legislation by which the conduct of mankind is to be regulated when introduced for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and the penal consequences emanating from the Benami Amendment Act, 2016, in infraction to the mandate of fundamental rights guaranteed under Article 20 of the Constitution; cannot be given retrospective effect in absence of a clear stipulation by the Parliament on retrospectivity. This Court has no hesitation to hold that the Benami Amendment Act, 2016, amending the Principal Benami Act, 1988, enacted w.e.f. 1st November, 2016, i.e. the date determined by the Central Government in its wisdom for its enforcement; cannot have retrospective effect. This Court has neither examined nor commented upon merits of the writ applications but has considered only the larger question of retrospective applicability of the Benami Amendment Act, 2016 amending the original Benami Act of 1988. Thus, the authority concerned would examine each case on its own merits keeping in view the fact that amended provisions introduced and the amendments enacted and made enforceable w.e.f. 1st November, 2016; would be prospective and not retrospective. The batch of writ applications stands disposed off, as indicated above. - S.B. Civil Writ Petition No. 2915/2019, 15978/2017, 19132/2017, 21751/2017, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers Limited, Shri Sanjay Gupta And Ram Singh Meena Versus Deputy Commissioner (Benami Prohibition) Jaipur And Initiating Officer, Union Of India, Additional Commissioner Of Income Tax (BP) Jaipur, Adjudicating Authority And Sh. Gulab Singh Yadav ORDER The above noted batch of writ applications, projects a challenge to the jurisdiction of the income tax authorities in initiation of proceedings under section 24 of the Prohibition of Benami Property Transactions Act, 1988 (for short, Benami Act of 1988), as amended vide Benami Transactions (Prohibition) Amendment Act, 2016 (for short, Benami Amendment Act of 2016), which came into effect on 01st November, 2016. Hence, the matters have been entertained collectively for final adjudication at this stage by this common order consented by the counsel for the parties. 2. Shorn off unnecessary details, the essential skeletal material facts needs to be taken note of for adjudication of the controversy are: that the Income Tax Department conducted search and seizure under Section 132 of the Income Tax Act, 1961, on various premises belonging to the petitioners and in course of search and seizure, several incri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence, the provisions as such are inapplicable to the present cases. 4. Learned counsel for the petitioners vehemently asserted that the intent in introduction of the Benami Amendment Act of 2016, was to eradicate the discrepancies and loop holes that have crept in with passage of time after the introduction of the Benami Act of 1988. Further, referring to the text of section 1 and 6 of the Benami Amendment Act of 2016, it is vociferously contended that it was never the intention of either the legislation or the executive that the provisions of the Benami Amendment Act of 2016; be applicable with retrospective effect. According to the learned counsel for the petitioners, the language employed with the statement that whoever enters into any benami transaction on and after the date of commencement of the Benami Amendment Act of 2016, that is on 1st November, 2016 or afterwards; leaves no room for any doubt that the alleged benami transactions so transacted by the petitioners, before the commencement of the Benami Amendment Act of 2016, doesn t fall under its purview. 5. In the backdrop of section 3 (3) of Benami Act of 1988 and new section 53 of Benam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27 of the Constitution of India. Further, the petitioners have challenged the very jurisdiction and authority of the respondent department to make such a provisional attachment of the alleged benami property, and therefore, the instant writ petitions are maintainable as the petitioners have no other remedy for redressal of their grievance. 8. It is further alleged that the respondent department has initiated the proceeding involved herein in order to harass and torment the petitioners for it is evident from the fact that the respondent department referred the matters to the Adjudicating Authority so soon they learned of the institution of the instant writ applications by the petitioners before this court. Furthermore, the respondent department issued notices under Section 24 (3) of the Benami Amendment Act of 2016, to the petitioners on the very same day when it issued notice to the local authorities to provide information with respect to the transactions made in regard to the alleged subject benami property. The notices under Section 24 (3) of the Benami Amendment Act of 2016; are to be issued after making thorough inquires and examination of reports or evidences a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. M/S Pepsi Foods Ltd. and Ors. vs. Special Judicial Magistrate and Ors. AIR 1998 SC 128 18. Collector of Central Excise, Ahmedabad vs. Orient Fabrics Pvt. Ltd. (2004 ) 1 SCC 597 19. Suhas H. Pophale vs. Oriental Insurance Co. Ltd. and its Estate Officer (2014) 4 SCC 657 20. State of Punjab and Ors. vs. Bhajan Kaur and Ors. (2008 ) 12SCC 112 21. Jeans Knit (P) Ltd. vs. Deputy Commissioner of Income Tax and Ors (2018) 12 SCC 36 22. Calcutta Discount Company Limited vs. Income Tax Officer, Companies District, I and Ors. AIR 1961 SC 372 23. Raza Textiles Ltd. vs. Income Tax Officer, Rampur (1973) 1 SCC 633 24. Malayala Manorama Co. Ltd vs Assistant Commissioner, Commercial Taxes , Civil Appeal No. 2267/2007, decided on July 8, 2010 25. In the case of Bhibhuti Bhusan Bankura Vs. Sate of West Bengal: 1994 (1) CLJ 353 26. In the case of Thakur Bhim Singh (dead) By Lrs and Ors. Vs. Thakur Kan Singh: AIR 1980 SC 727. 27. Joseph Isharat vs. Rozy Nishikant Gaikwad 2017(5)ABR706 10. Per contra: Mr. Pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the main object behind introduction of the Benami Act of 1988, on 19 May 1988, was to make benami transactions offence and to acquire such benami properties through acquisition without compensation as per the procedure prescribed therein, so that the unjust gains and benefits of evasion of taxes could be avoided. Hence, keeping in view the intendment and object in introduction of amended Benami Act of 1988; incorporating necessary amendments introduced through Benami Amendment Act of 2016, only clarified and amplified the intention of legislature in order to effectively cure and curb the mischief of ever increasing corruption, which was the also intended under the Principal Act i.e. Benami Act of 1988; enacted on 19 May 1988. 13. According to learned counsel for the respondents, confiscation of the benami property, a replacement, by way of amendment, is not a new introduction in totality to the Benami Act of 1988. Acquisition without compensation is nothing but confiscation only; therefore, substitution of the term acquisition by another term i.e. confiscation, cannot be termed as penal, in the backdrop of the object sought to be achieved through the Benami A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... free from liability. According to learned counsel, the intended object of the statute by amendment, involved herein is two fold; firstly, benami transactions entered into on or after commencement of Benami Amendment Act of 2016, shall be punishable under the amended provisions contained in Chapter VII by imprisonment for seven years, and; secondly, the benami transactions prior to the commencement of Benami Amendment Act of 2016, shall be penalized by the existing provisions contained in the unamended Benami Act of 1988, i.e by three years imprisonment. Thus, the provision only provides for an enhanced punishment for benami transactions entered into on or after commencement of Benami Amendment Act of 2016. Hence, no right to any party has accrued nor a new liability created as to the pending benami transactions. 17. Reference has also been made to text of Section 65 of the amended Benami Act of 1988, which contemplates transfer of pending cases. According to learned senior counsel, a glance of the text of Section 65 would reflect that the procedure provided therein for prevention of Benami Transactions under the provisions of Benami Amendment Act of 2016, shall a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India, High Court of Madeya Pradesh 19. CIT, New Delhi Vs. Ram Kishan Dass 2019 (5) SCALE 312 20. Authorized Officer, State Bank of Travancore and another Vs. Mathew K.C. (2018) 3 SCC 85 21. R. Rajgopal Reddy (Dead) by L.Rs. And Ors. Vs. Padmini Chandrasekhara (Dead) by L.Rs. (1995) 2 SCC 630 22. WA-704-2017, Kailash Assudani vs Commissioner Of Income Tax decided on 16 August, 2017 23. His Highness Maharaja Pratap Singh Vs. Maharani Sajojani Devi and ors. :1994 supp (1) SCC 734 24. Kapur Chand Pokhraj Vs. State of Bombay: AIR 1958 SC 993 25. Canbank Financial Services Ltd. vs. The Custodian and Ors. (2004) 8 SCC 355 18. Heard the learned counsel for the parties and with their assistance perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at bar and the opinions referred to and relied upon. 19. Considering the entire factual matrix, materials available on record and pleadings of the parties, in the above noted writ applications in totality, this court concluded to deal with the lar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged benami transactions, which happens to be of dates precedent to the enactment of Benami Amendment Act of 2016. 22. It is also not in dispute that the rules in exercise of powers conferred by virtue of Section 68 of the Benami Amendment Act of 2016, have been notified on 25th October, 2016, even before the substantive section 68 of the Benami Amendment Act of 2016, was made effective for which date appointed is 1st November, 2016. 23. In the case of Whirlpool Corporation (supra), the Apex Court of the land held thus: 13. Learned counsel for the appellant has contended that since suo motu action Under Section 56(4) could be taken only by the High Court and not by the Registrar, the notice issued to the appellant was wholly without jurisdiction and, therefore, a writ petition even at that stage was maintainable. The appellant, in these circumstances, was not obliged to wait for the Registrar to complete the proceedings as any further order passed by the Registrar would also have been without jurisdiction. 14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent and distinguishable from the factual matrix of the Vodafone International Holdings B.V. (supra), that fell for consideration of the Supreme Court. Hence, the opinion referred to and relied upon is of no help to the respondents in support of preliminary objection as to maintainability of the writ applications under Article 226 of the Constitution. 25. In the case of Calcutta Discount Company Limited (supra), a Constitution Bench of the Apex Court of the land while examining the rejection order on a writ application under Article 226 of the Constitution of India, in the backdrop of notices issued under Section 34 of the Indian Income Tax Act, 1922, wherein the Income Tax Officer called upon the Company to submit fresh returns of its total income; in no uncertain terms observed that the pretended notice was issued without existence of the necessary conditions precedent, which confers jurisdiction under section 34; and therefore, the aggrieved party approaching the court at the earliest opportunity, could not be denied relief for existence of such alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive, he held that the notices issued were without jurisdiction. Accordingly he made an order prohibiting the Income-tax Officer from continuing the assessment proceedings on the basis of the impugned notices. 3. The learned Judges who heard the appeal agreed with the Trial Judge that the first ground had not been made out. They held however that in consequence of the amendment of section 34 in 1948 the objection on the ground of limitation must also fail. A point of constitutional law which appears to have been raised before the appeal court was also rejected. The appeal was allowed and the company's application under article 226 was dismissed with costs. 6. To confer jurisdiction under this section to issue notice in respect of assessments beyond the period of four years, but within a period of eight years, from the end of the relevant year two conditions have therefore to be satisfied. The first is that the Income-tax Officer must have reason to believe that income, profits or gains chargeable to income-tax have been underassessed. The second is that he must have also reason to believe that such under assessment has occurred by reason of eith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must co-exist before the Income-tax Officer has jurisdiction to start proceedings after the expiry of 4 years. The argument that the Court ought not to investigate the existence of one of these conditions, viz., that the Income-tax Officer has reason to believe that under assessment has resulted from non-disclosure of material facts cannot therefore be accepted. 26. Mr. Sastri next pointed out that at the stage when the Income-tax Officer issued the notices he was not acting judicially or quasi-judicially and so a writ of certiorari or prohibition cannot issue. It is well settled however that though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority from acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts, it is well settled, will issue appropriate orders or directions to prevent such consequences. 27. Mr. Sastri mentioned more than once the fact that the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 30(1A). But before such an appeal can be entertained the appellant must satisfy two conditions, namely, (1) he had deducted the tax due from the non-resident in accordance with the provisions of Sub-section 3(B) and (2) that he had paid the sum deducted to the Government. The appellant having not complied with those two conditions, the Appellate Assistant Commissioner held that the appeal was incompetent. The order of the Appellate Assistant Commissioner was confirmed by- the Tribunal. Thereafter the appellant moved the High Court under Article 226 of the Constitution. That application came up before a single Judge. The single Judge after going into the matter in detail came to the conclusion that M/s. Nathirmal and Sons is not a non-resident firm and that being so the appellant was not required to act under Section 18(3B). He accordingly, set aside the order impugned. The revenue went up in appeal against the order of the learned single Judge to the Appellate Bench. That Bench allowed the appeal with the observations, In the present case the question before the Income-tax Officer, Rampur, was whether the firm Nathirmal and Sons was non-resident or not. There was material befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department before the High Court, came to the conclusion that as the facts were not in dispute and questions raised were purely legal and are to be tested in view of the judgment of this Court in the case of Printers (Mysore) Ltd. v. Assistant Commercial Tax Officer [(1994) 93 Sales Tax Cases 95 : (1994) 2 SCC 434], Whirlpool Corporation v. Registrar of Trade Marks [(1998) 8 SCC 1] as well as the judgment in the case of State of H.P. Ors. v. Gujarat Ambuja Cements Ltd. [(2005) 6 SCC 499 : (2005) 142 Sales Tax Cases 1], the writ petition was maintainable. However, while laying emphasis that the newspaper would not fall within the expression `goods' under sub-section 3 of Section 5 of the Act, the High Court held that the notice issued was proper as Form No. 18 which gives benefit of concessional rate of tax was factually not correct. While dismissing the writ petition, however, the Bench issued a direction to the assessing authority to examine whether the imposition of penalty at double the rate is justified in the facts and circumstances of the case, within a period of two months from the date of receipt of the copy of the judgment. It is this judgment of the High Court which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t applications constituting the batch; the alleged benami transactions are of a date preceding 1st November, 2016. In some of the matters, even prior to the commencement of unamended Benami Act of 1988, which came into effect on 5th September, 1988 whereas Sections 3, 5 and 8 of the unamended Benami Act, 1988, were deemed to have come into force on 19th day of May, 1988 i.e with retrospective effect. The Benami Amendment Act, 2016 (43 of 2016), has been made applicable from the date appointed by the Central Government vide notification dated 25th October, 2016. And the appointed date determined, is, 1st November, 2016, as the date on which the provisions of the Benami Amendment Act, 2016, shall come into force. 30. A comparative consideration of Section 2 of the Benami Act, 1988 and the Benami Amendment Act, 2016, would reflect that the definitions under the unamended Act contains sub-section (1) to (4) only, whereas the amending Benami Amendment Act, 2016, contains sub-section (1) to (31), defining various terms and phrases elaborately. Learned counsel for the parties referring to the aims, objects and scope of amendment in the Principal Act of 1988 vide Benami T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fences: (1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence (2) No person shall be prosecuted and punished for the same offence more than once (3)No person accused of any offence shall be compelled to be a witness against himself. Unamended Benami Transactions (Prohibition) Act, 1988 1. Short title, extent and commencement- (1) This Act may be called the Benami Transactions (Prohibition) Act, 1988. (2) It extends to the whole of India except the State of Jammu and Kashmir. (3) The provisions of sections 3, 5 and 8 shall come into force at once, and the remaining provisions of this Act shall be deemed to have come into force on the 19th day of May, 1988. 2. Definitions- In this Act, unless the context otherwise requires,-- (a) benami transaction means any transaction in which pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in such manner and after following such procedure as may be prescribed. (2) For the removal of doubts, it is hereby declared that no amount shall be payable for the acquisition of any property under sub-section (1). 8. Power to make rules- (1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-- (a) the authority competent to acquire properties under section 5; (b) the manner in which, and the procedure to be followed for, the acquisition of properties under section 5; (c) any other matter which is required to be, or may be, prescribed. (3) Every rule made under this Act shall be laid, so soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration for such property has been provided or paid out of the known sources of the individual; (iv) any person in the name of his brother or sister or lineal ascendant or descendant, where the names of brother or sister or lineal ascendant or descendant and the individual appear as joint-owners in any document, and the consideration for such property has been provided or paid out of the known sources of the individual; or (B) a transaction or an arrangement in respect of a property carried out or made in a fictitious name; or (C) a transaction or an arrangement in respect of a property where the owner of the property is not aware of, or, denies knowledge of, such ownership; (D) a transaction or an arrangement in respect of a property where the person providing the consideration is not traceable or is fictitious; (19) Initiating Officer means an Assistant Commissioner or a Deputy Commissioner as defined in clauses (9A) and (19A) respectively of section 2 of the Income-tax Act, 1961 (43 of 1961); In section 3 of the principal Act,- (a) sub-section (2) shall be omitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tachment has not been made under sub-section (3),- (i) pass an order provisionally attaching the property with the prior approval of the Approving Authority, till the passing of the order by the Adjudicating Authority under sub-section (3) of section 26; or (ii) decide not to attach the property as specified in the notice, with the prior approval of the Approving Authority. (5) Where the Initiating Officer passes an order continuing the provisional attachment of the property under sub-clause (i) of clause (a) of sub-section (4) or passes an order provisionally attaching the property under sub-clause (i) of clause (b) of that sub-section, he shall, within fifteen days from the date of the attachment, draw up a statement of the case and refer it to the Adjudicating Authority. 26. Adjudication of benami property (1) On receipt of a reference under sub-section (5) of section 24, the Adjudicating Authority shall issue notice, to furnish such documents, particulars or evidence as is considered necessary on a date to be specified therein, on the following persons, namely:- (a) the person specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty shall be deemed to be a property referred to it on the date of receipt of the reference under sub-section (5) of section 24. (6) The Adjudicating Authority may, at any stage of the proceedings, either on the application of any party, or suo motu, strike out the name of any party improperly joined or add the name of any person whose presence before the Adjudicating Authority may be necessary to enable him to adjudicate upon and settle all the questions involved in the reference. (7) No order under sub-section (3) shall be passed after the expiry of one year from the end of the month in which the reference under sub-section (5) of section 24 was received. (8) The benamidar or any other person who claims to be the owner of the property may either appear in person or take the assistance of an authorised representative of his choice to present his case. Explanation.-For the purposes of sub-section (8), authorised representative means a person authorised in writing, being- (i) a person related to the benamidar or such other person in any manner, or a person regularly employed by the benamidar or such oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or de novo as the Adjudicating Authority may deem fit. 68. Power to make rules (1) The Central Government may, by notification, make rules for carrying out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:- (a) manner of ascertaining the fair market value under clause 16 of section 2; (b) the manner of appointing the Chairperson and the Member of the Adjudicating Authorities under subsection (2) of section 9; (c) the salaries and allowances payable to the Chairperson and the Members of the Adjudicating Authority under sub-section (1) of section 13; (d) the powers and functions of the authorities under sub-section (2) of section 18; (e) other powers of the authorities under clause (f) of sub-section (1) of section 19; (f) the form and manner of furnishing any information to the authority under sub-section (2) of section 21; (g) the manner of provisional attachment of property under sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d date i.e. 1st November, 2016. Hence, the rules framed, in exercise of power under Section 68, have been framed and notified by notification dated 25th October, 2016, even before the amendement incorporating Section 68, was made operative that is w.e.f. 1st November, 2016. Therefore, the plea of the petitioners as to the rules having been framed contrary to and in absence of power available to the Central Government under Section 68 of the Benami Amendment Act, 2016, which was made operative and effective w.e.f. 1st November, 2016; has substance. 34. Further, to understand the true character and meaning of Benami Transactions, under the English law and Indian Law; it will be relevant to take note of the text of para 14 of the Apex Court of the land in the case of Thakur Bhim Singh (dead) By Lrs and Ors . (supra), which reads thus: 14. Under the English law, when real or personal property is purchased in the name of a stranger, a resulting trust will be presumed in favour of the person who is proved to have paid the purchase money in the character of the purchaser. It is, however, open to the transferee to rebut that presumption by showing that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n different persons. The question whether a transaction is a benami transaction or not mainly depends upon the intention of the person who has contributed the purchase money in the former case and upon the intention of the person who has executed the conveyance in the latter case. The principle underlying the former case is also statutorily recognized in Section 82 of the Indian Trusts Act, 1882 which provides that where property is transferred to one person for a consideration paid or provided by another person and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration. This view is in accord with the following observations made by this Court in Meenakshi Mills. Madurai v. The Commissioner of Income-Tax, Madras MANU/SC/0044/1956 : [1956]1SCR691 .: In this connection, it is necessary to note that the word 'benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transaction which is real, as for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24. We are therefore bound to hold that the conditions precedent to the exercise of jurisdiction under section 34 of the Income-tax Act did not exist and the Incometax Officer had therefore no jurisdiction to issue the impugned notices under section 34 in respect of the years 1942-43, 1943-44 and 1944-45 after the expiry of four years. 25. Mr. Sastri argued that the question whether the Income-tax Officer had reason to believe that underassessment had occurred by reason of non-disclosure of material facts should not be investigated by the courts in an application under article 226. Learned Counsel seems to suggest that as soon as the Incometax Officer has reason to believe that there has been under-assessment in any year he has jurisdiction to start proceedings under section 34 by issuing a notice provided 8 years have not elapsed from the end of the year in question, but whether the notices should have been issued within a period of 4 years or not is only a question of limitation which could and should properly be raised in the assessment proceedings. It is wholly incorrect however to suppose that this is a question of limitation only not touching the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or order prohibiting an authority acting without jurisdiction from continuing such action. 28. In the present case the company contends that the conditions precedent for the assumption of jurisdiction under section 34 were not satisfied and came to the court at the earliest opportunity. There is nothing in its conduct which would justify the refusal of proper relief under article 226. When the Constitution confers on the High Courts the power to give relief it becomes the duty of the courts to give such relief in fit cases and the courts would be failing to perform their duty if relief is refused without adequate reasons. In the present case we can find no reason for which relief should be refused. 29. We have therefore come to the conclusion that the company was entitled to an order directing the Incometax Officer not to take any action on the basis of the three impugned notices. 30. We are informed that assessment orders were in fact made on March 25, 1952, by the Income-tax Officer in the proceedings started on the basis of these impugned notices. This was done with the permission of the learned Judge before whom the petition und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit: law looks forward not backward. As was observed in Phillips v. Eyre (1870) LR 6 QB 1, a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law. 29. The obvious basis of the principle against retrospectivity is the principle of 'fairness', which must be the basis of every legal rule as was observed in the decision reported in L'Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd. (1994) 1 AC 486. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the pre-amended provision was clear and unambiguous. An amending Act may be purely clarificatory 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 and, therefore, if the principal Act was existing law which the Constitution came into force, the amending Act also will be part of the existing law. The above summing up is factually based on the judgments of this Court as well as English decisions. 37. When we examine the insertion of proviso in Section 113 of the Act, keeping in view the aforesaid principles, our irresistible conclusion is that the intention of the legislature was to make it prospective in nature. This proviso cannot be treated as declaratory/statutory or curative in nature. 42.2 Thus, it was a conscious decision of the legislature, even when the legislature knew the implication thereof and took note of the reasons which led to the insertion of the proviso, that the amendment is to operate prospectively. Learned Counsel appearing for the Assessees sagaciously contrasted the aforesaid stipulation while effecting ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amendment) Act, 2005'. Section 6(3) talks of death after the amendment for its applicability. In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective Shyam Sunder v. Ram Kumar (2001) 8 SCC 24, Paras 22 to 27. In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. The intent and effect of the Amendment will be considered a little later. On this finding, the view of the High Court cannot be sustained. 18. Contention of the Respondents that the Amendment should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be interpreted so as to frustrate the very basic rule of law. It is a settled principle of interpretation of criminal jurisprudence that the provisions have to be strictly construed and cannot be given a retrospective effect unless legislative intent and expression is clear beyond ambiguity. The amendments to criminal law would not intend that there should be undue delay in disposal of criminal trials or there should be retrial just because the law has changed. Such an approach would be contrary to the doctrine of finality as well as avoidance of delay in conclusion of criminal trial. 39. In the case of J.S. Yadav vs. State of U.P. and Ors. (supra), the Supreme Court held thus: 24. The Legislature is competent to unilaterally alter the service conditions of the employee and that can be done with retrospective effect also, but the intention of the Legislature to apply the amended provisions with retrospective effect must be evident from the Amendment Act itself expressly or by necessary implication. The aforesaid power of the Legislature is qualified further that such a unilateral alteration of service conditions should be in conformity with le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole (ibid., p. 440). 25. There is no dispute with regard to the fact that the Act in question is a welfare legislation which was enacted to protect the interest of the suppliers especially suppliers of the nature of a small scale industry. But, at the same time, the intention and the purpose of the Act cannot be lost sight of and the Act in question cannot be given a retrospective effect so long as such an intention is not clearly made out and derived from the Act itself. 41. In the case of O. Konavalov vs. Commander, Coast Guard Region and Ors.: (supra), the Supreme Court observed thus: POWER TO CONFISCATE 30. The power to confiscate and the consequent forfeiture of rights or interests are drastic, being penal in nature. Statutes conferring such powers must be read very strictly. There can be no exercise of power under such statutes by way of extension or implication. No expansive meaning can be given therefore to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their brand name to Residency Foods and Beverages Ltd. for bottling the beverage Lehar Pepsi '. The complaint does not show what is the role of the appellants in the manufacture of the beverage which is said to be adulterated. The only allegation is that the appellants are the manufacturer of bottle. There is no averment as to how the complainant could say so and also if the appellants manufactured the alleged bottle or its contents. His sole information is from A.K. Jain who is impleaded as accused No. 3. The preliminary evidence on which the 1st respondent relied in issuing summon to the appellants also does not show as to how it could be said that the appellants are manufacturers of either the bottle or the beverage or both. There is another aspect of the matter. The Central Government in the exercise of their powers under Section 3 of the Essential Commodities Act, 1955 made Fruit Products Order, 1955 (for short, the Fruit Order ). It is not disputed that the beverage in the question is a fruit product within the meaning of Clause (2)(b) of the Fruit Order and that for the manufacture thereof certain licence is required. The Fruit Order defines the manufacturer and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rriage of justice in the case. Power of judicial review is discretionary but this was a case where the High Court should have exercised it. 43. In the case of Collector of Central Excise, Ahmedabad vs. Orient Fabrics Pvt. Ltd.: (supra) , the Apex Court of the land, held thus: 3. The Tribunal relying upon the decision in the case of Pioneer Silk Mills Pvt. Ltd. v. Union of India, reported in 1995(80)ELT507(Del) , allowed the appeals, holding that the provisions of Central Excise Act and the Rules made thereunder, so far as they relate to confiscation cannot be made applicable for the breach of provisions of the Act. It is against the said judgment and order of the Tribunal, the appellant is in appeal before us. 4. Mr. S.R. Bhat, learned counsel appearing for the appellant, urged that the view taken by the Tribunal in allowing the appeals was erroneous inasmuch as it is contrary to the decisions in the case of Khema Co. (Agencies) Pvt. Ltd. v. State of Maharashtra, reported in [1975]3SCR753 and Commissioner of Central Excise v. Ashok Fashion Ltd., reported in 2002(141)ELT606(Guj). 5. In order to appreciate the is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods specified in Sub-section (1). 19. It is now a well settled principles of law that expropriatory legislation must be strictly construed (see D.L.F. Qutab Enclave Complex Educational Charitable Trust v. State of Haryana and Ors., reported in : [2003]2SCR1 ). It is further trite that a penal statute must receive strict construction. 20. The matter may be considered from another angle. The Parliament by reason of the Amending Act 32 of 1994 consciously brought in the expression offences and penalties' in Sub-section (3) of Section 3 of the Act. The mischief rule, if applied, would clearly show that such amendment was brought with a view to remedy the defect contained in the unamended provisions of Sub-section (3) of Section 3 of the Act. Offences having regard to the provisions contained in Article 20 of the Constitution of India cannot be given a retrospective effect. In that view of the matter too Subsection (3) of Section 3 of the Act as amended cannot be said to have any application at all. 21. In view of the aforesaid decisions, it must be held that the confiscation proceedings taken against the respondents and the penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter, the Court was concerned with the issue as to whether the Appellant's right to file an appeal continued to be available to him for filing an appeal to the Andhra Pradesh High Court after it was created from the erstwhile Madras High Court. The Constitution Bench held that the right very much survived, and the vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. 49. The same has been the view taken by a bench of three Judges of this Court in J.P. Jani, Income Tax Officer, Circle IV, Ward G, Ahmedabad v. Induprasad Devshanker Bhatt reported in AIR 1969 SC 778 in the context of a provision of the Income Tax Act, 1961, in the matter of reopening of assessment orders. In that matter the Court was concerned with the issue as to whether the Income Tax Officer could re-open the assessment under Section 297(2) (d)(ii) and 148 of the Income Tax Act, 1961, although the right to re-open was barred by that time under the earlier Income Tax Act, 1922. This Court held that the same was impermissible and observed in paragraph 5 as follows: 5 The reason is that su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith substantive rights transactions are neither invalidated by reason of their failure to comply with formal requirements subsequently imposed, nor open to attack under powers of avoidance subsequently conferred. They are also not rendered valid by subsequent relaxations of the law, whether relating to form or to substance. Similarly, provisions in which a contrary intention does not appear neither impose new liabilities in respect of events taking place before their commencement, nor relieve persons from liabilities then existing, and the view that existing obligations were not intended to be affected has been taken in varying degrees even of provisions expressly prohibiting proceedings. (See: Halsbury's Laws of England, 4th Edn. Vol. 44, paras 921, 922, 925 and 926). 54. Having noted the aforesaid observations, it is very clear that in the facts of the present case, the Appellant's status as a deemed tenant was accepted under the state enactment, and therefore he could not be said to be in unauthorised occupation . His right granted by the state enactment cannot be destroyed by giving any retrospective application to the provisions of Public Premises Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. In Land Acquisition Officer-cum- DSWO, A.P. v. B.V. Reddy and Sons this Court opined that Section 25 being not a procedural provision will have no retrospective effect, holding: 6. Coming to the second question, it is a well- settled principle of construction that a substantive provision cannot be retrospective in nature unless the provision itself indicates the same. The amended provision of Section 25 nowhere indicates that the same would have any retrospective effect. Consequently, therefore, it would apply to all acquisitions made subsequent to 24-9-1984, the date on which Act 68 of 1984 came into force. The Land Acquisition (Amendment) Bill of 1982 was introduced in Parliament on 30- 4-1982 and came into operation with effect from 24-9-1984.... 27. For the reasons aforementioned, the decisions of Kerala and Punjab Haryana High Court do not lay down a good law. They are overruled accordingly. However, as the State has not asked for any relief against the respondents, this appeal is dismissed. No costs. 46. In the case of Joseph Isharat vs. Rozy Nishikant Gaikwad:( supra), the Bombay High Court, held thus: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions were in operation. These provisions continued to apply even when the written statement was filed by the Defendant and the suit was heard and decreed by both the courts below. The legal provisions continued to apply even when the second appeal was filed before this court. It is only now during the pendency of the second appeal, when it has come up for final hearing, that there is a change in law. The Benami Act has been amended by the Parliament in 2016 with the passing of the Benami Transactions (Prohibition) Amendment Act, 2016. This amendment has come into effect from 01 November 2016. In the Amended Act the definition of benami transaction has undergone a change. Under the Amended Act benami transaction means (under Section 2(9) of the Act) a transaction or an arrangement where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration. There are four exceptions to this rule. The first is in respect of a karta or a member of a Hindu undivided family holdin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agopal Reddy v. Padmini Chandrasekharan (1995) 2 SCC 630, Section 4 of the Benami Act, or for that matter, the Benami Act as a whole, creates substantive rights in favour of benamidars and destroys substantive rights of real owners who are parties to such transaction and for whom new liabilities are created under the Act. Merely because it uses the word it is declared , the Act is not a piece of declaratory or curative legislation. If one has regard to the substance of the law rather than to its form, it is quite clear, as noted by the Supreme Court in R. Rajagopal Reddy, that the Benami Act affects substantive rights and cannot be regarded as having a retrospective operation. The Supreme Court in R. Rajagopal Reddy also held that since the law nullifies the defences available to the real owners in recovering the properties held benami, the law must apply irrespective of the time of the benami transaction and that the expression shall lie in Section 4(1) or shall be allowed in Section 4(2) are prospective and apply to the present (future stages) as well as future suits, claims and actions only. These observations clearly hold the field even as regards the present amendment to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him. It is incomprehensible to think that a quasi-judicial authority like the Income-tax Officer can erroneously decide a jurisdictional fact and thereafter proceed to impose a levy on a citizen. In our opinion the Appellate Bench is wholly wrong in opining that the Income-tax Officer can decide either way . 49. In the case of Malayala Manorama Co. Ltd vs Assistant Commissioner, Commercial Taxes, (supra), it has been held thus: 4. The Assistant Commissioner, Commercial Tax, who had issued the notice, came to the conclusion that the concession has been extended to non-taxable goods also and formed an opinion that the concession is applicable only to `goods' and newspaper was not a `goods' within the meaning of Section 2 of the Act. While referring to another judgment of this Court in Collector of Central Excise v. Ballarpur Industries Ltd. [(1989) 4 SCC 566 : (1990) 77 Sales Tax Cases 282], the said Assistant Commissioner concluded that newspaper was not a `goods' and, therefore, the declaration was not appropriate and imposed a penalty of ₹ 14,66,256 for the year 2000-2001. 5. The assessee firm did not take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eleted as well as the expression `or uses the same in the manufacture of any goods which are not liable to tax in this Act' in Section 5(3)(i) was also deleted. Despite these amendments, as it appears from the record before the Court, format of Form No. 18 has not been amended consequently. However, the fact of the matter remains that the High Court has not dwelt upon these legal issues which are the core issues involved in the present case. In our view, the discussion on the first issue would certainly have some bearing on the alternative argument raised on behalf of the appellant before us. Thus, it may not be possible for this Court to sustain the finding recorded by the High Court in that regard. Of course, we are not ruling out all the possibilities of the High Court arriving at the same conclusion if it is of that view after examining the amendments as well as the submissions made on behalf of the appellant with regard to its alternative submissions. In light of this discussion, we pass the following order : (a) The impugned order dated 2nd August, 2006 passed by the High Court is hereby set aside. (b) The matter is remanded to the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciples of public purpose and compensation. 111. Seervai in his celebrated book 'Constitutional Law of India' (Edn. IV), spent a whole Chapter XIV on the 44th Amendment, while dealing with Article 300A. In paragraph 15.2 (pages 1157-1158) the author opined that confiscation of property of innocent people for the benefit of private persons is a kind of confiscation unknown to our law and whatever meaning the word acquisition may have does not cover confiscation for, to confiscate means to appropriate to the public treasury (by way of penalty) . Consequently, the law taking private property for a public purpose without compensation would fall outside Entry 42 List III and cannot be supported by another Entry in List III. Requirements of a public purpose and the payment of compensation according to the learned author be read into Entry 42 List III. Further the learned author has also opined that the repeal of Article 19(1)(f) and 31(2) could have repercussions on other fundamental rights or other provisions which are to be regarded as part of the basic structure and also stated that notwithstanding the repeal of Article 31(2), the word compensation or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may extend to three years or with fine or with both. Therefore, the provision creates a new offence of entering into such benami transactions. It is made non-cognizable and bailable as laid down under Sub-section (4). It is obvious that when a statutory provision creates new liability and new offence, it would naturally have prospective operation and would cover only those offences which take place after Section 3(1) comes into operation. In fact Saikia J. speaking for the Court in Mithilesh Kumari's case (supra) has in terms observed at page 635 of the report that Section 3 obviously cannot have retrospective operation. We respectfully concur with this part of the learned Judge's view. The real problem centers round the effect of Section 4(1) on pending proceedings wherein claim to any property on account of it being held benami by other side is on the anvil and such proceeding had not been finally disposed of by the time Section 4(1) came into operation, namely, on 19th May, 1988. Saikia J. speaking for the Division Bench in the case of Mithilesh Kumari (supra) gave the following reasons for taking the view that though Section 3 is prospective and though Section 4(1) is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Even when we come to Section 4, it is easy to visualise that Subsection (1). of Section 4 states that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other shall lie by or on behalf of a person claiming to be the real owner of such property. As per Section 4(1) no such suit shall thenceforth lie to recover the possession of the property held benami by the defendant. Plaintiffs right to that effect is sought to be taken away and any suit to enforce such a right after coming into operation of Section 4(1) that is 19th May, 1988, shall not lie. The legislature in its wisdom has nowhere provided in Section 4(1) that no such suit, claim or action pending on the date when Section 4 came into force shall not be proceeded with and shall stand abated. On the contrary, clear legislative intention is seen from the words no such claim, suit or action shall lie , meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any Court for seeking such a relief after coming into force of Section 4(1). In Collins English Dictionar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of the provisions of Section 4(1). Bar against filing, entertaining and admission of such suits would have become operative by June, 1988 and to that extent Section 4(1) would take in its sweep even past benami transactions which are sought to be litigated upon after coming into force of the prohibitory provision of Section 4(1); but that is the only effect of the retroactivity of Section 4(1) and nothing more than that. From the conclusion that Section 4(1) shall apply even to past benami transactions to the aforesaid extent, the next step taken by the Division Bench that therefore, the then existing rights got destroyed and even though suits by real owners were filed prior to coming into operation of Section 4(1) they would not survive, does not logically follow. 17. As regards, reason No. 3, we are of the considered view that the Act cannot be treated to be declaratory in nature. Declaratory enactment declares and clarifies the real intention of the legislature in connection with an earlier existing transaction or enactment, it does not create new rights or obligations. On the express language of Section 3, the Act cannot be said to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstrued when the pre-amended provision was clear and unambiguous. An amending Act may be purely clarificatory 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 and, therefore, if the principal Act was existing law when the constitution came into force the amending Act also will be part of the existing law. In Mithilesh Kumari v. Prem Bihari Khare, Section 4 of the Benami Transactions (Prohibition) Act, 1988 was, it is submitted, wrongly held to be an Act declaratory in nature for it was not passed to clear any doubt existing as to the common law or the meaning or effect of any statute. The conclusion however, that Section 4 applied also to past benami transactions may be supportable on the language used in the section. 18. No exception can be taken to the aforesaid observations of learned author which in our view can certainly be pressed in service for judging whether the impugned section is declaratory in nature or not. Accordingly it must be held that Section 4 or for that matter the Act as a whole is not a piece of declaratory or curative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eting our Constitution. We find nothing in the language of article 13(1) which may be read as indicating an intention to give it retrospective operation. On the contrary, the language clearly points the other way. The provisions of Part III guarantee what are called fundamental rights. Indeed, the heading of Part III is Fundamental Rights . These rights are given, for the first time, by and under our Constitution. Before the Constitution came into force there was no such thing as fundamental right. What article 13(1) provides is that all existing laws which clash with the exercise of the fundamental rights (which are for the first time created by the Constitution) shall to that extent be void. As the fundamental rights became operative only on and from the date of the Constitution the question of the inconsistency of the existing laws with those rights must necessarily arise on and from the date those rights came into being. It must follow, therefore, that article 13(1) can have no retrospective effect but is wholly prospective in its operation. After this first point is noted, it should further be seen that article 13(1) does not in terms make the existing laws wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatute by a subsequent statute. As already explained, article 13(1) only has the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with respect to the exercise of fundamental rights on and after the date of the commencement of the Constitution. It has no retrospective effect and if, therefore, an act was done before the commencement of the Constitution in contravention of the provisions of any law which, after the Constitution, becomes void with respect to the exercise of any of the fundamental rights, the inconsistent law is not wiped out so far as the past act is concerned for, to say that it is, will be to give the law retrospective effect. There is no fundamental right that a person shall not be prosecuted and punished for an offence committed before the Constitution came into force. So far as the past acts are concerned the law exists, notwithstanding that it does not exist with respect to the future exercise of fundamental rights. We, therefore, agree with the conclusion arrived at by the High Court on the second question, although on different grounds. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into force, and as regards proceedings whether not yet begun, or pending at the time of enforcement of the Constitution and not yet prosecuted to a final judgment, the very serious question arises as to whether a law which has been declared by the Constitution to be completely ineffectual can yet be applied. On principle and on good authority, the answer to this question would appear to me to be that the law having ceased to be effectual can no longer be applied. In R. v. Mawgan (Inhabitants) (1888) 8 A. E. 496 a presentment as to the non-repair of a highway had been made under 13 Geo. 3, c. 78, s. 24, but before the case came on to be tried, the Act was repealed. In that case, Lord Denman C.J. said : If the question had related merely to the presentment, that no doubt is complete. But dum loquimur, we have lost the power of giving effect to anything that takes place under that proceeding. And Littledale J. added : I do not say that what is already done has become bad, but that no more can be done. In my opinion, this is precisely the way in which we should deal with the present case. 55. In the case of Thakur Bhim Singh (Dead) by Lrs and Ors. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the transferee though the transferee holds the property for the benefit of the person who has contributed the purchase money, in the latter case, there is no operative transfer at all and the title rests with the transferor notwithstanding the execution of the conveyance. One common feature, however, in both these cases is that the real title is divorced from the ostensible title and they are vested in different persons. The question whether a transaction is a benami transaction or not mainly depends upon the intention of the person who has contributed the purchase money in the former case and upon the intention of the person who has executed the conveyance in the latter case. The principle underlying the former case is also statutorily recognized in Section 82 of the Indian Trusts Act, 1882 which provides that where property is transferred to one person for a consideration paid or provided by another person and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration. This view is in accord with the following ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise out of the pregnancy or confinement rendering the employee unfit for work. (2) No notice of dismissal or discharge or reduction given to an employee during the period specified in sub-section (1) shall be valid or operative. Mr. Dolia contends that since this Act has been passed for conferring certain benefits on employees in case of sickness, maternity and employment injury, it is necessary that the operative provisions of the Act should receive a liberal and beneficent construction from the court. It is a piece of social legislation intended to confer specified benefits on workmen to whom it applies, and so, it would be inappropriate to attempt to construe the relevant provisions in a technical or a narrow sense. This position cannot be disputed. But in dealing with the plea raised by Mr. Dolia that the section should be liberally construed, we cannot overlook the fact that the liberal construction must ultimately flow from the words used in the section. If the words used in the section are capable of two constructions one of which is shown patently to assist the achievement of the object of the Act, courts would be justified i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Act was passed though by doing so vested rights were affected. Mellor J. observed, (pp. 200-201). It appears to me to be the general object of this statute that there should be restrains as to the persons who should be qualified to hold licences, not as a punishment, but for the public good, upon the ground of character... A man convicted before the Act passed is quite as much tainted as a man convicted after; and it appears to me not only the possible but the natural interpretation of the section that any one convicted of felony shall be ipso facto disqualified, and the licenses, if granted, void. 8. If that is not the intention, then it is clear to me that sub-s. (3) need not have been enacted at all for clearly the first sub-section would by its own terms have applied to cases of winding up on a petition presented before the amending Act. It applies to all banking companies being wound up and, therefore, also to such companies as are being wound up on a petition presented before that Act. It could be said that even then the first sub-section would not have a retrospective operation but would only apply prospectively to a banking company being wound up on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays so expressly or by necessary intendment. The Court reversed the High Court decision and held that effect of these provisions was that after the amendment of 1957, adjudication or criminal proceedings could be taken up in respect of a contravention mentioned in section 23(1) while before the amendment only criminal proceedings before a Court could be instituted to punish the offender. In repelling the contention advanced by Shri N.C. Chatterjee that the new amendments did not apply to contravention which took place before the Act came into force, the Court observed: In our opinion, there is force in the contention of the learned Solicitor-General. As observed by this Court in Rao Shiv Bahadur Singh vs. The State of Vindhya Pradesh (1953) SCR 1188, a person accused of the commission of an offence has no vested right to be tried by a particular court or a particular procedure except in so far as there is any constitutional objection by way of discrimination or the violation of any other fundamental right is involved. It is well recognised that no person has a vested right in any course of procedure (vide Maxwell 11th Edition, p. 216), and we see no reason why thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transactions past and closed: (see Surtees v. Ellison, 1829) 9 B C 752. This rule was altered by an omnibus provision in General Clauses Act, 1897, relating to the effect of repeal of statutes by any Central Act or Regulation. By Section 6 of the General Clauses Act, it is provided, in so far as it is material, that any Central Act or Regulation made after the commencement of the General Clauses Act or repeals any enactment, the repeal shall not affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or affect any right, privilege, obligation or liability acquired, occurred or incurred under any enactment so repealed or affect any investigation legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, any such penalty, forfeiture or punishment may be imposed, as if the Repealing Act or Regulation had not been passed. But the rule contained in Section 6 applies only if a different intention does not appear, and by enacting Section 58(3) the Parliament has ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though undoubtedly they are entitled to great respect. In agreement with this dictum of Sulaiman C.J. the High Court of Punjab, in its judgment in the present case, has observed that where there is a simple repeal and the Legislature has either not given its thought to the matter of prosecuting old offenders, or a provision dealing with that question has been inadvertently omitted, section 6 of the General Clauses Act will undoubtedly be attracted. But no such inadvertence can be presumed where there has been a fresh legislation on the subject and if the new Act does not deal with the matter, it may be presumed that the Legislature did not deem it fit to keep alive the liability incurred under the old Act. In our opinion the approach of the High Court to the question is not quite correct. Whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject unless construed retrospective. An explanatory Act is generally passed to supply 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, pp.468-469). 15. Though retrospectivity is not to be presumed and rather there is presumption against retrospectivity, according to Craies (Statute Law, Seventh Edition), it is open for the legislature to enact laws having retrospective operation. This can be achieved by express enactment or by necessary implication from the language employed. If it is a necessary implication from the language employed that the legislature intended a particular section to have a retrospective operation, the Courts will give it such an operation. In the absence of a retrospective operation having been expressly given, the Courts may be called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (p.226). Sometimes, where the sense of the statute demands it or where there has been an obvious mistake in drafting, a court will be prepared to substitute another word or phrase for that which actually appears in the text of the Act (p.231). 18. In a recent decision of this Court in National Agricultural Cooperative Marketing Federation of India Ltd. And Anr. v. Union of India and Ors., (2003)181CTR(SC)1 , it has been held that there is no fixed formula for the expression of legislative intent to give retrospectivity to an enactment. Every legislation whether prospective or retrospective has to be subjected to the question of legislative competence. The retrospectivity is liable to be decided on a few touchstones such as : (i) the words used must expressly provide or clearly imply retrospective operation; (ii) the retrospectivity must be reasonable and not excessive or harsh, otherwise it runs the risk of being struck down as unconstitutional; (iii) where the legislation is introduced to overcome a judicial decision, the power cannot be used to subvert the decision without removing the statutory basis of the decision. There is no fixed formula fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico . 22. The State Legislature of Haryana intended to impose a disqualification with effect from 5.4.1994 and that was done. Any person having more than two living children was disqualified on and from that day for being a member of municipality. However, while enacting a proviso by way of an exception carving out a factsituation from the operation of the newly introduced disqualification the draftsman's folly caused the creation of trouble. A simplistic reading of the text of the proviso spelled out a consequence which the Legislature had never intended and could not have intended. It is true that the Second Amendment does not expressly give the amendment a retrospective operation. The absence of a provision expressly giving a retrospective operation to the legislation is not determinative of its prospectivity or retrospectivity. Intrinsic evidence may be available to show that the amendment was necessarily intended to have the retrospective effect and if the Court can unhesitatingly conclude in favour of retrospectivity, the Court would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Bihar and Ors. : (supra), the Supreme Court observed thus: 8. Section 14 provides for issuance of show cause notice by the Authorised Officer to the person concerned to explain his source of income and other assets and why such money or property or both should not be declared to have been acquired by means of the offence and be confiscated to the State Government. Sub-section (2) provides that where a notice Under Sub-section (1) to any person specifies any money or property or both has been held on behalf of such person by any other person, a copy of the notice shall also be served upon such other person. Sub-section (3) lays down that the evidence, information or particulars brought on record before the authorised officer shall not be used against the accused in the trial before the special court. Section 15 deals with the confiscation of property in certain cases. It provides a detailed procedure and obliges the authorised officer to follow the principles of natural justice. It prescribes a time limit for disposal of the proceeding and gives immense stress on identification of property or money or both which have been acquired by means of the offence and fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsection (2) provides that if any person refuses or fails to comply with an order made Under Sub-section (1), the authorised officer may take possession of the property and may, for that purpose, use such force as may be necessary. Sub-section (3) confers powers on the authorised officer to requisition service of any police officer to assist and mandates the concerned police officer to comply with such requisition. Section 15. Confiscation of property in certain cases - (1) (2) . (3) Where the authorised officer records a finding under this section to the effect that any money or property or both have been acquired by means of the offence, he shall declare that such money or property or both shall, subject to the provisions of this Act, stand confiscated to the State Government free from all encumbrances. Provided that if the market price of the property confiscated is deposited with the authorised officer, the property shall not be confiscated. (4) ... (5) (6) ... 147. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot protected by any constitutional right to advance the plea that he cannot be made liable to face confiscation proceedings of the property which has been accumulated, by illegal means. That being the litmus test, the filament of reasoning has to rest in favour of confiscation and not against it. Therefore, we are of the considered view that the provision does not violate any constitutional assurance. 62. In the case of Titaghur Paper Mills Co. Ltd. and Ors. vs. State of Orissa and Ors.: (supra), Supreme Court, observed thus: 6. We are constrained to dismiss these petitions on the short ground that the petitioners have an equally efficacious alternative remedy by way of an appeal to the prescribed authority under Sub-section (1) of Section 23 of the Act, then a second appeal to the Tribunal under Sub-section (3)(a) thereof, and thereafter in the event the petitioners get no relief, to have the case stated to the High Court under Section 23 of the Act. In Raleigh Investment Co. Limited v. Governor General in Council, 74 I.A. 50 Lord Uthwart, J. in delivering the judgment of the Board observed that in the provenance of tax where the Act provided f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Tribunal can only reject it on the ground that it has no jurisdiction to entertain such objection or render any decision on it. As no such question can be raised or can even arise out of the order of the Appellate Tribunal, the High Court cannot possibly give any decision on the question of ultra vires because its jurisdiction under Section 66 is a special advisory jurisdiction and its scope is strictly limited. It can only decide questions of law that arise out of the order of the Appellate Tribunal and that are referred to it. Further, an appeal to this Court under Section 66A(2) does not enlarge the scope of the jurisdiction of this Court as this Court can only do what the High Court can under Section 66. It would therefore appear that the majority decision in Venkataraman's case, supra, rests on the principle that (i) An ultra vires provision cannot be regarded as a part of the Act at all, and an assessment under such a provision is not made under the Act but is wholly without the jurisdiction and is not directed by Section 67 of the Act. And (ii) The question whether a provision is ultra vires or not cannot be decided by any of the authorities created by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner has an alternative remedy which, without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Art. 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit, by entertaining a petition under Art. 226 of the Constitution, the machinery created under the stature to be by-passed, and will leave the party applying to it to seek resort to the machinery so set up. 64. In the case of State of H.P. and Ors. vs. Gujarat Ambuja Cement Ltd. and Ors.: (supra), the Supreme Court observed thus: 17. We shall first deal with the plea regarding alterna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n re-iterated in N.T. Veluswami Thevar v. G. Raja Nainar and Ors. AIR1959SC422 ; Municipal Council, Khurai and Anr. v. Kamal Kumar and Anr. [1965]2SCR653 ; Siliguri Municipality and Ors. v. Amalendu Das and Ors. [1984]146ITR624(SC) ; S.T. Muthusami v. K. Natarajan and Ors. [1988]2SCR759 ; R.S.R.T.C. and Anr. v. Krishna Kant and Ors. : (1995)IILLJ728SC ; Kerala State Electricity Board and Anr. v. Kurjen E. Kalathil and Ors. AIR2000SC2573 ; A. Venkatasubbiah Naidu v. S. Chekkappan and Ors. : AIR2000SC3032 ; and L.L. Sudhakar Reddy and Ors. v. State of Andhra Pradesh and Ors. AIR2001SC3205 ; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Anr. v. State of Maharashtra and Ors. : AIR2001SC3982 ; Pratap Singh and Anr. v. State of Haryana AIR2002SC3385 and G.K.N. Driveshafts (India) Ltd. v. Income Tax Officer and Ors. (2003)179CTR(SC)11 . 20. In Harbans Lal Sahnia v. Indian Oil Corporation Ltd : AIR2003SC2120 , this Court held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the Court must consider the pros and cons of the case and then may int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus: 13. In Nivedita Sharma v. Cellular Operators Assn. of India (2011) 14 SCC 337, this Court has held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows: 12. In Thansingh Nathmal v. Supdt. of Taxes AIR 1964 SC 1419 this Court adverted to the rule of selfimposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: (AIR p. 1423, para 7). 7. ... The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved Petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the Act provides complete machinery for the assessment/re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the Assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. v. State of Haryana (1985) 3 SCC 267 this Court has noticed that if an appeal is from Caesar to Caesar's wife the existence of alternative remedy would be a mirage and an exercise in futility. 66. In the case of Harbanslal Sahnia and Ors. vs. Indian Oil Corpn. Ltd. and Ors. (supra), the Supreme Court held thus: 7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed, suffice it to observe that the rule of exclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e end, is a question which seems to be answered by the words before which the proceeding concerned is pending occurring in the definition of TRIBUNAL in Section 2(1)(x) of the Act. Let us test whether the answer is correct. 54. Section 56 contemplates proceedings of varying nature. The proceedings contemplated by Sub-section (1) relate to the cancellation of Trade Mark or varying the registration of Trade Mark, on the ground that the condition on which the registration was granted, was either violated or there was failure in observing the condition of registration. These proceedings may be entertained either by the High Court or the Registrar on the application, and, at the instance, of the person aggrieved . 55. The proceedings contemplated by Sub-section (2) of Section 56 relate to the absence or omission of an entry in the Register or an entry having been made without sufficient cause or an entry wrongly remaining on the Register or there being any error or defect in an entry in the Register. Such proceedings may also be entertained either by the Registrar or the High Court on an application made in the prescribed manner by a person aggrieve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impels the proceedings to be instituted only in the High Court. The jurisdiction of the Registrar in those cases which are covered by Section 107 is totally excluded. Significantly, Section 107(2) provides that if an application for rectification is made to the registrar Under Section 46 or Section 47(4) or Section 56, the Registrar may, if he thinks fit, refer that application, at any stage of the proceeding, to the High Court. 61. Similarly, Under Section 111 of the Act, in a pending suit relating to infringement of a Trade Mark, if it is brought to the notice of the Court that any rectification proceedings relating to plaintiffs or defendant's trade Mark are pending either before the Registrar or the High Court, the proceedings in the suit shall be stayed pending final decision of the High Court or the Registrar. Even if such proceedings are not pending either before the Registrar or the High Court, the trial court, if pritna facie satisfied that the plea regarding invalidity of plaintiff s or defendant's Trade Mark is tenable, may frame an issue and adjourn the case for three months to enable the party concerned to apply to the High Court for rectificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when proceeding concerned is pending before it. This he tried to show by pointing out that the words as the case may be are placed between two commas, one at the beginning immediately after the word Registrar and the other at the end, with the result that the words Tribunal means the Registrar stand out distinctly, while the words High Court before which the proceeding concerned is pending stand out separately as an independent phrase. It is contended that the words before which the proceeding concerned is pending will not be applicable to the Registrar and, therefore, the Registrar can exercise the jurisdiction Under Section 56 irrespective of pendency of any proceeding . 68. In the case of Vodafone International Holdings B.V. vs. Union of India (UOI) and Ors.: (supra) , the Supreme Court held thus: 3. In the facts and circumstances of this case, thus, we are of the opinion that the question in regard to the jurisdictional issue, may be determined, by the authority concerned as a preliminary issue, in terms of the decision of this Court in Management of Express Newspapers (Private) Ltd., Madras v. The Workers and Ors. (1962)IILLJ227S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween the parties as to the validity of the reference itself, the Appeal Court took the view that the questions which had to be decided in dealing with the appellant's contention that the reference was invalid, were complex questions of fact and that it would be appropriate that the said questions should be fully investigated and tried in the first instance by the Industrial Tribunal itself. In other words, the Appeal Court held that though the High Court had jurisdiction to entertain an application for a writ of Prohibition even at the initial stage of the proceedings commenced before a Special Tribunal, it would not be proper that a writ of prohibition should be issued unless the disputed questions of fact were tried by the said Special Tribunal in the first instance. On this view, the order passed by the trial Judge has been modified and the disputes referred to the Industrial Tribunal for its adjudication have been remitted to the said Tribunal for its disposed in accordance with law. In making this Order, the Appeal Court has indicated the nature of the dispute and the questions of fact which the Industrial Tribunal may have to try and the limits of its jurisdiction. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax, (Benami Transaction) And Initiating Officer (supra) Under The Prevention Of Benami Transaction Act 2016, this Court observed thus: Grounds have been raised regarding non-compliance of principles of natural justice as well as non-compliance of the provisions contained under the Benami Transaction (Prohibition) Act, 1988, specially Section 24 with regard to service of notice and also with regard to application of mind relating to the order of approval. Having noted the aforesaid, this Court finds that it would not be appropriate for this Court at this stage to examine the veracity and legality of the notice of attachment issued way back as on 22/12/2017 as of now as the matter is already pending before the adjudicating authority. However, all the objections, which the petitioner has raised before this Court, can be taken up by him before the adjudicating authority and it would be for the adjudicating authority to decide and examine all the objections and pass a reasoned order. It is expected from the adjudicating authority to give reasonable time to the petitioner to put up his objections in writing and examine the entire issue thread-bear afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court of Madhya Pradesh held thus: It is apparent that the learned Single Judge of this Court in WP No.10280/2017 filed by one Kailash Assudani challenging the show cause notice of similar nature has dismissed the petition holding that the provision of Section 26 of the Act, 1988 is a complete code in itself providing ample opportunities to the assessee concerned, and apart from that there is remedy of appeal available to the petitioner. The order passed by the learned Single a Judge of this Court in WP No.10280/2017 has been confirmed by the Division Bench of this Court in WA No.704/2017 with the ad following observations:- We do not find any merit in the present M appeal. It is the Adjudicating Authority who is to decide the question of Benami nature of the property. The proceedings under Section 24 of the Act contemplates the issuance of show cause notice as to why the property specified in the notice should not be treated as Benami property. However, the substantive order of treating the property as Benami is required to be passed by Adjudicating Authority under Section 26 C of the Act only. Therefore, the appellant is at liberty to take all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the real owner of such property. As per Section 4(1) no such suit shall thenceforth lie to recover the possession of the property held benami by the defendant. Plaintiffs right to that effect is sought to be taken away and any suit to enforce such a right after coming into operation of Section 4(1) that is 19th May, 1988, shall not lie. The legislature in its wisdom has nowhere provided in Section 4(1) that no such suit, claim or action pending on the date when Section 4 came into force shall not be proceeded with and shall stand abated. On the contrary, clear legislative intention is seen from the words no such claim, suit or action shall lie , meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any Court for seeking such a relief after coming into force of Section 4(1). In Collins English Dictionary, 1979 Edition as reprinted subsequently, the word 'lie' has been defined in connection with suits and proceedings. At page 848 of the Dictionary while dealing with topic No. 9 under the definition of term 'lie' it is stated as under :- For an action, claim appeal ect. to subsist; be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Section 4(1); but that is the only effect of the retroactivity of Section 4(1) and nothing more than that. From the conclusion that Section 4(1) shall apply even to past benami transactions to the aforesaid extent, the next step taken by the Division Bench that therefore, the then existing rights got destroyed and even though suits by real owners were filed prior to coming into operation of Section 4(1) they would not survive, does not logically follow. 12. So far as Section 4(2) is concerned, all that is provided is that if a suit is filed by a plaintiff who claims in his favour and holds the property in his name, once Section 4(2) applies, no defence will be permitted or allowed in any such suit, claim or action by or on behalf of a person claiming to be the real owner of such property held benami. The disallowing of such a defence which earlier was available, itself, suggests that a new liability or restriction is imposed by Section 4(2) on a pre- existing right of the defendant. Such a provision also cannot be said to be retrospective or retroactive by necessary implication. It is also pertinent to note that Section 4(2) does not expressly seek to apply r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 4(2) places a bar on a defendant pleading 'benami', after the coming into force of the Act. In this context, it would be anomalous if the bar in Section 4 is not applicable if a suit pleading 'benami' is already filed prior to the prescribed date, and it is treated as applicable only to suit which he filed thereafter. It would have the effect of classifying the so-called 'real' owners into two classes - those who stand in the position of plaintiffs and those who stand in the position of defendants. This may be clarified by means of an illustration. A and B are 'real' owners who have both purchased properties in say 1970, in the names of C and D respectively who are ostensible owners viz. benamidars. A files a suit in February 1988 i.e. before the coming into force of the Act against C, for a declaration of his title saying that C is actually holding it as his benamidar. According to the petitioner's argument, such a plea would be open to A even after coming into force of the Act, since the suit has already been laid. On the other hand, if D files a suit against B at the same for declaration and injunction, claiming himself to be the owner but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has been held thus: 13. In Ikbal (supra), it was observed that the action of the Bank Under Section 13(4) of the 'SARFAESI Act' available to challenge by the aggrieved Under Section 17 was an efficacious remedy and the institution directly Under Article 226 was not sustainable, relying upon Satyawati Tandon (Supra), observing: 27. No doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction Under Article 226 but by now it is well settled that where a statute provides efficacious and adequate remedy, the High Court will do well in not entertaining a petition Under Article 226. On misplaced considerations, statutory procedures cannot be allowed to be circumvented. *** 28.......In our view, there was no justification whatsoever for the learned Single Judge to allow the borrower to bypass the efficacious remedy provided to him Under Section 17 and invoke the extraordinary jurisdiction in his favour when he had disentitled himself for such relief by his conduct. The Single Judge was clearly in error in invoking his extraordinary jurisdiction Under Article 226 in light of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislative history of Section 9(1)(ii), it can only be assumed that it was deliberately introduced with effect from 1 April 2000 and was therefore intended to be prospective. This was also so construed by the CBDT, and in the explanatory notes to the provisions of the Finance Act, 1999. As we have indicated, interpretation is a matter of determining the path on the basis of statutory context and legislative history. In taking the view that we have, we have also taken note of the fact that the same view was adopted by several High Courts. Among them are (i) the Punjab and Haryana High Court in Jagatjit Sugar Mills Co. Ltd. v. Commissioner of Income Tax (1994) 74 Taxman 8 (Pun. Har.); [1994] 210 ITR 468; (ii) the Kerala High Court in Commissioner of Income Tax, Cochin v. Popular Automobiles (2011) 333 ITR 308; and (iii) the Allahabad High Court in Ghaziabad Development Authority v. Commissioner of Income Tax, Ghaziabad (UP) (2011) 12 Taxman.com 334 (Allahabad). The decision of the Kerala High Court in Popular Automobiles (supra) is the subject matter of Civil Appeal No. 2951 of 2012 in these proceedings. 78. In the case of Canbank Financial Services Ltd. vs. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication of law. The principle of law known as lex prospicit non prospicit (law looks forward not backward), is a well known and accepted principle. The retrospective legislation is contrary to general principle for legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried out in the faith of the then existing law (vide Phillips Vs. Eyre (1870)LR 6 QB 1). Thus, the principle against retrospectivity is the principle of fairplay and unless there is a clear and unambiguous intendment for retrospective effect to the legislation which affects accrued rights or imposes obligations or castes new duties or attaches a new disability is to be treated as prospective. 81. It is trite law that an explanatory or declaratory Act is intended to supply an obvious omission or is enacted to clear doubts as to the meaning of the previous Act. While retrospective operation is generally intended as to declaratory or curative provisions, which is supplied with the language shall be deemed always to have meant . Therefore, in absence of clarity amendment bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, 2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20th December, 2004. Notional partition, by its very nature, is not covered either under proviso or under Subsection 5 or under the Explanation. 83. By now, it is well settled law that a substantive provision unless specifically made retrospective or otherwise intended by the Parliament should always be held to be prospective. The power to confiscate and consequent forfeiture of rights or interests are drastic being penal in nature, and therefore, such statutes are to be read very strictly. However, there can be no exercise of powers under such statutes by way of extension or implication (vide O.Konavalov (supra). 84. In the case of D.L.F. Qutab Enclave Complex Educational Charitab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (Prohibition) Act would not be applicable retrospectively. Even otherwise and as observed hereinabove, the Plaintiff has miserably failed to discharge his onus to prove that the Sale Deeds executed in favour of Defendant No. 1 were benami transactions and the same properties were purchased in the name of Defendant No. 1 by Narayanasamy Mudaliar from the amount received by him from the sale of other ancestral properties. 87. Article 20 of the Constitution of India is fundamental right guaranteed under Part-III of the Constitution and the penal consequences emanating from the Benami Amendment Act, 2016, in infraction to the mandate of fundamental rights guaranteed under Article 20 of the Constitution; cannot be given retrospective effect in absence of a clear stipulation by the Parliament on retrospectivity. 88. In the case of Joseph Isharat (supra), relying upon the opinion of the Apex Court of the land in the case of R. Rajagopal Reddy (Dead) by L.Rs. and Ors. (supra) while examining the provisions of amendment introduced by the Legislature through Benami Amendment Act, 2016, made effective from 1st November, 2016, the Bombay High Court obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en these provisions were in operation. These provisions continued to apply even when the written statement was filed by the Defendant and the suit was heard and decreed by both the courts below. The legal provisions continued to apply even when the second appeal was filed before this court. It is only now during the pendency of the second appeal, when it has come up for final hearing, that there is a change in law. The Benami Act has been amended by the Parliament in 2016 with the passing of the Benami Transactions (Prohibition) Amendment Act, 2016. This amendment has come into effect from 01 November 2016. In the Amended Act the definition of benami transaction has undergone a change. Under the Amended Act benami transaction means (under Section 2(9) of the Act) a transaction or an arrangement where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration. There are four exceptions to this rule. The first is in respect of a karta or a member of a Hindu undivided fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of R. Rajagopal Reddy v. Padmini Chandrasekharan (1995) 2 SCC 630, Section 4 of the Benami Act, or for that matter, the Benami Act as a whole, creates substantive rights in favour of benamidars and destroys substantive rights of real owners who are parties to such transaction and for whom new liabilities are created under the Act. Merely because it uses the word it is declared , the Act is not a piece of declaratory or curative legislation. If one has regard to the substance of the law rather than to its form, it is quite clear, as noted by the Supreme Court in R. Rajagopal Reddy, that the Benami Act affects substantive rights and cannot be regarded as having a retrospective operation. The Supreme Court in R. Rajagopal Reddy also held that since the law nullifies the defences available to the real owners in recovering the properties held benami, the law must apply irrespective of the time of the benami transaction and that the expression shall lie in Section 4(1) or shall be allowed in Section 4(2) are prospective and apply to the present (future stages) as well as future suits, claims and actions only. These observations clearly hold the field even as regards the present a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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