TMI Blog2020 (7) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... barred by limitation. - Decided in favour of assessee. - ITA No.1723/Del/2017 - - - Dated:- 20-7-2020 - Shri Amit Shukla, Judicial Member And Shri Prashant Maharishi, Accountant Member For the Assessee : Shri Ajay Vohra, Sr. Adv., Shri Neeraj Jain, Adv., Shri Aditya Vohra, Adv., Shri Arpit Goyal, C.A. For the Department : Ms. Rakhi Vimal, Sr. DR, ORDER PER PRASHANT MAHARISHI, A. M. : 1. This appeal is filed by the by the assessee against the order of the ld. Commissioner of Income Tax (Appeals)-Noida dated 20.01.2017 for the Assessment Year 2009-10, wherein, the order passed by the ld Assistant Commissioner of Income Tax (TDS), Noida on 16.02.2016 u/s 201(1)/ 201(1A) read with section 194C, 194H, 194I and 194J of the Act holding that the assessee is an assessee in default for non deduction of tax at source amounting to ₹ 23871484/- u/s 201(1) and consequential interest u/s 201(1A) of ₹ 19817482/- was determined, was confirmed. 2. The assessee raised the following grounds of appeal:- 1. That the Commissioner of Income-tax (Appeals) [ CIT(A) ] erred on facts and in law in not holding that the order passed by the assessing officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 370904021/- for various services such as contract payments, professional services, rent and commission for the year ended on 31/3/2009 and tax has not been deducted at source. Therefore, show cause notice u/s 201(1) and 201(1A) of the Act was issued on 11.01.2016. The assessee submitted its reply on 22.01.2016 stating that time limit for passing of the order u/s 201(1) has already expired on 31.03.2012. On merits, the assessee did not submit any explanation. The ld AO rejected the contention of the assessee stating that notice u/s 201(1) and 201(1A) are issued in the case of the assessee on the basis of disallowance u/s 40(a)(ia) in the return filed by the assessee for Assessment Year 2009-10. Therefore, notice is not time barred. The ld AO thereafter held that the assessee has not deducted tax of ₹ 23871484/- and therefore, he treated the assessee as the assessee in default for that sum. He further charged interest u/s 201(1A) amounting to ₹ 19817482/-. Thus, the total demand was raised of ₹ 43688966/-. Consequent, order was passed on 16.02.2016. 4. On appeal before the ld CIT(A), assessee once again contested that the order is time barred. Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by limitation. He extensively relied on the decision of the Hon ble Gujarat High Court in Tata Teleservices Vs. Union of India 385 ITR 497 wherein, identical question for the same assessment year arose. He submitted that the Hon ble Gujarat High Court held that section 201(3) has amended by Finance Act No. 2 of 2014 shall not be applicable retrospectively and therefore, no order u/s 201(1) could be passed for which limitation had already expired prior to amended section 201(3) as amended Finance Act 3 of 2014 came into force. He submitted that the Hon ble Gujarat High Court decided this issue for Assessment Year 2008-09 and 2009-10. He further submitted that SLP in the present case has already been dismissed by the Hon'ble Supreme Court. He further referred to decision of Hon'ble Gujarat High Court in Eris Life Sciences Pvt. Ltd Vs. DCIT and the decision of the Hon ble Gujarat High Court in Troikaa Pharmaceutical Ltd Vs. Union of India 68 Taxmann.com 229 for the same year. He thus, submitted that the issue is squarely covered in favour of the assessee. 6. The ld DR vehemently supported the order of the lower authorities and submitted that the ld AO had time limit avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner, the petitioner filed its TDS statement regularly for the F.Y. 2008-2009 for respective quarter and therefore period for passing order under Section 201 (3) expired on 31/03/2012 for relevant financial year. 6.2 That the petitioner was served with the summons dated 09/10/2014 by respondent No. 2 requiring personal attendance in connection with proceedings under the Income Tax Act for A.Y. 2008-2009 and 2009-2010 seeking details regarding TDS for F.Y. 2007-2008 and 2008-2009. That the petitioner made submissions dated 15/12/2014 and contended that the assessment proceedings sought to be initiated are time barred in view of Section 201(3) of the Act as it stood at the end of the respective FY 2007-2008 and 2008-2009. 6.3 That according to the petitioner, the respondent No. 2 by a letter dated 18/12/2014 rejected the submissions without considering the issue of limitation. The petitioner vide letter dated 26/12/2014 gave a reply pointing out that the aspect regarding proceedings barred by the limitation while dealing the objections has not been considered. That in response thereto the respondent No. 2 by a letter am 29/12/2014 held that the proceedings for F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014 is with prospective effect. On the aforesaid grounds and submissions, the respective petitioners have challenged the impugned notices / summonses issued under section 201 of the Act. 8.That the amendment of Section 201 of the Act by Finance Act, 2014 was expressly made prospective w.e.f. 01/10/2014 and therefore the impugned notices/summons for FY 2007-2008 and 2008-2009 where erroneously issued by respondent No. 2 since time limit for passing an order under Section 201(3) had already lapsed for the relevant financial years. Therefore respondent No. 2 had no power or authority under the amended Section 201 of the Act by Finance Act, 2014. 8.1 Mr.Mihir Joshi, learned Senior Advocate appearing on behalf of the petitioner has further submitted that the amendment in Section 201(3) of the Act vide Finance Act, 2012 was expressly made retrospective w.e.f. 01/04/2010. However the subsequent amendment in Section 201(3)iof the Act by Finance Act, 2014 is not made expressly with retrospective effect but the plain language of the amended section says that it is w.e.f. 01/10/2014. In support of his above submissions, Mr.Joshi, learned Senior Advocate has heavily relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation cannot be held to be open for revival unless the amended provision is clearly given retrospective operation so as to allow upsetting of proceedings, which had already been concluded and attained finality . Taxing provisions imposing a liability is governed by normal presumption that it is not retrospective and settled principle of law is that the law to be applied is that which is in force in the assessment year unless otherwise provided expressly or by necessary implications. Even a procedural provision cannot in the absence of clear contrary intendment expressed therein be given greater retrospectively then is expressly mentioned so as to enable the authorities to affect finality of tax-assessment or to open up liabilities, which have become barred by lapse of time. In support of his above submissions, Mr.Joshi, learned Senior Advocate has heavily relied upon the decision of the Hon'ble Supreme Court in the case of K.M. Sharma v. ITO [2002] 122 Taxman 426. 8.4 Mr.Mihir Joshi, learned Senior Advocate appearing on behalf of the petitioner has further submitted that the judgment cited by respondent No. 2 i.e. (i) in the case of Ahmedabad Mfg. Calico Print ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end of such year. Hence it is expressly enables assessment where the period expires and that it operates upon expiry of the limitation period and any other reading would render it redundant. It is in this context the Hon'ble Supreme Court observed that We do not think that sub-section (2) and the proviso added to it leave anyone in doubt that as one the date when the proviso came into force, the Commissioner of Sales Tax could authorize making of assessment or reassessment after the expiration of 8 years from the end of that particular assessment year. It is immaterial if a period for assessment or reassessment under sub-section (2) of Section 21 before the addition of the said proviso had expired.' 8.5 Mr.Mihir Joshi, learned Senior Advocate appearing on behalf of the petitioner has submitted that as such, there is no conflict between the decision of the Hon'ble Supreme Court in the case of K.M. Sharma (supra) cited and relied upon by the petitioner and the decision of the Hon'ble Supreme Court in the case of Jyoti Traders (supra), cited and relied upon by the respondent. 8.6 Mr.Mihir Joshi, learned Senior Advocate appearing on behalf of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age is unambiguous and therefore the court observed that it must be assumed that the legislature intended that the amended provision to apply even to assessments that have so become final. (Para 13). In the present case the amended Section 201 has come into force w.e.f. 01/10/2014 not to pass an order at any time after the expiry of the seven years from the end of the financial year in which the payment is made or credit is given. Therefore the language is very clear and expressive which does not cover the assessment proceedings which are time barred on the date when the amended Section 201 came into force as on 01/10/2014. The language of Section 201 is ambiguous if it is interpreted in the manner to apply in respect of the assessment proceeding which are time barred under the unamended Section 201. It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question. The language used is not to be either stretched in favour of the revenue or narrowed in favour of the assessee. It is essential not to confound what is actually or vir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Cause notice would not be entertained particularly when the petitioners are having adequate statutory remedy under the Income Tax Act itself. In support of his above submission he has heavily relied upon the decision of this Court in the case of Inox Air Products Ltd. v. Union of India Special Civil Application No. 16725 of 2013. It is submitted that in the aforesaid decision, relying upon the decision of the Hon'ble Supreme Court reported in the case of Bellary Steels Alloys Ltd. v. CCT [2009] 17 SCC 547 as well as in the case of Indo Asahi Glass Co. Ltd. v. ITO [2002] 122 Taxman 123 (SC), this court has not entertained the petitions which were filed against the Show Cause Notice. 10.2 Mr.M.R. Bhatt, learned counsel appearing on behalf of the revenue has further submitted that the contention on behalf of the petitioners that the impugned notices under section 201(1) are barred by proviso to section 201(3) of the Act, is untenable in law. It is submitted that section 201(3) as amended by Finance Act (No.2) of 2014 specifically provides for consequences of failure to deduct or pay the Income Tax and it further provides that no order shall be made under sub-section (1) d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of notice is required to be applied. It is submitted that section 201(3) provides for issuance of notice within 7 years. It is submitted that the language of section 201(3) as amended by Finance Act (No.2) 2014 being plain, unambiguous, literal, the same is required to be applied while giving liberal meaning to to it. 10.7 Mr.M.R. Bhatt, learned counsel appearing on behalf of the revenue has further submitted that in the present case larger period of limitation as provided under section 201(3) as amended by Finance Act (No.2) which provides for 7 years time is not applied, in that case, the purpose and object of amendment in section 201(3) of the Act would be frustrated. 10.8 Mr.M.R. Bhatt, learned counsel appearing on behalf of the revenue has further submitted that as such similar provision is also incorporated in Section I49(1)(c) of the Act providing for a larger period of limitation where foreign assets are involved. 10.9 Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of S.S.Gadgil (supra), by the learned advocate appearing on behalf of the petitioners, is concerned, it is vehemently submitted by Mr.Bhatt, learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and relying upon the above decisions, it is requested to dismiss the present petitions. 11. Heard the learned counsel appearing on behalf of the respective parties at length. 11.1 At the outset, it is required to be noted that in the present petitions, the petitioners have challenged the impugned notices / summonses issued under section 201 of the Income Tax Act. The learned counsel appearing on behalf of the revenue has raised objection against the maintainability and/or entertainability of the present petitions against the Show Cause Notice. However, it is required to be noted that in the present case, the issue involved is pure question of law, more particularly as to whether, section 201(3) as amended by Finance Act (No.2) 2014 would be applicable retrospectively or not? Under the circumstances, when pure question of law is involved, this Court is of the opinion that present petitions cannot be dismissed solely on the ground that the present petitions are against the Show Cause Notices. At this stage decision of the Hon'ble Supreme Court in the case of Harbanslal Sahnia v. Indian Oil Corpn. [2003] 2 SCC 107 (para 7) as well as another decision of the Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub- section does not deduct the whole or any part of the tax] or after deducting fails to pay the tax as required by or under this Act, he or it shall be liable to pay simple interest at one per cent for every month or part of a month on the amount of such tax from the date on which such tax was deductible to the date on which such tax is actually paid and such interest shall be paid before furnishing the quarterly statement for each quarter in accordance with the provisions of sub-section (3) of section 20; (2) Where the tax has not been paid as aforesaid after it is deducted, the amount of the tax together with the amount of simple interest thereon referred to in subsection (IA) shall be a charged upon all the assets of the person, or the company, as the case may be. referred to in sub-section (1). 12.2 Subsequently, section 201 of the Act came to be amended. Sub-sections (3) and (4) came to be introduced w.e.f. 1/4/2010. Section 201 as amended by Finance Act No.2 of 2009 w.e.f. 1/4/2010 reads as under : 201. (1) Where any person, including the principal officer of a company - (a) who is required to deduct any sum in accordance with the provisions of this Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) The provisions of sub-clause (ii) of sub-section (3) of section 153 and of Explanation 1 to section 153 shall, so far as may, apply to the time limit prescribed in sub-section (3). 12.3 Subsequently, section 201(3)(ii) of the Act came to be amended by Finance Act of 2012 with retrospective effect from 1/4/2010 whereby in sub-section (3) in clause (ii) words four years came to be substituted by words six years . Amended section 201(3) reads as under : 12.4 Subsequently, section 201(3)(ii) of the Act, was amended by Finance Act, 2012, with retrospective effect from 01/04/2010, whereby in sub-section (3), in clause (ii), for the words four years , the words six years shall be substituted. The amended Section 201(3) read as under: 201(3). No order shall be made under sub-section (1) deeming a person to be an assessee in default for failure to deduct the whole or any part of the tax from a person resident in India, at any time after the expiry of - (i) two years from the end of the financial year in which the statement is filed in a case where the statement referred to in section 200 has been filed: (ii) six years from the end of the financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7-08 and earlier years only proceedings that were pending could be completed by 31/3/2011 and as such no fresh proceedings could be commenced for the said period. 12.8. The reasons for amendment so stated in the memorandum to the Finance Bill No.2 of 2009 reads as under ; 'Providing time limits for passing of orders u/s. 201(1) holding a person to be an assessee in default. Currently, the Income Tax Act does not provide for any limitation of time for passing an order u/s. 201(1) holding a person to be an assessee in default. In the absence of such a time limit, disputes arise when these proceedings are taken up or completed after substantial time has elapsed. In order to bring certainty on this issue, it is proposed to provide for express time limits in the Act within which specified order u/s. 201 (1) will be passed. It is proposed that an order u/s 201(1) for failure to deduct the whole or any part of the tax as required under this Act, if the deductee is a resident taxpayer shall be passed within two years from the end of the financial year in which the statement of tax deduction at source is filed by the deductor. Where no such statement is filed, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the tax from a person resident in India at any time after expiry of seven years from the end of the financial year in which payment is made or credit is given. 12.12 By Finance Act No.2 of 2012, even distinction between the cases, statement has been filed and where such statement was not filed also has been removed and the amendment prescribes a common period of limitation i.e. seven years from the end of the financial year in which payment was made. 12.13 The reasons for amendment in section 201(3) so stated in the memorandum to the Finance Bill No.2 of 2014 reads as under : Tax Deduction at Source : Under Chapter XVII-B of the Act. a person is required to deduct tax on certain specified payments at the specified rates if the payment exceeds specified threshold. The person deducting tax ( the detductor ) is required to 'file a quarterly statement of tax deduction at source (TDS) containing the prescribed details of deduction of tax made during the quarter by the prescribed due date. Currently, a deductor is allowed to file correction statement for rectification / updation of the information furnished in the original TDS statement as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, section 148 of the Act allows reopening of cases of one more preceding previous year than specified under section 201(3)(ii) of the Act. Due to this, order under section 201(1) of the Act cannot be passed in respect of defaults relating to TDS which comes to the notice during search/reassessment proceeding in respect of previous year which is not covered under section 201(3)(ii) of the Act for passing order under section 201(1) of the Act shall be extended by one more year. The existing provisions of section 271H of the Act provides for levy of penalty for failure to furnish TDS/TCS statements in certain cases or furnishing of incorrect information in TDS/ TCS statements. The existing provisions of section 271H of the Act do not specify the authority which would be competent to levy the penalty under the said section. Therefore, provisions of section 271H are proposed to be amended to provide that the penalty under section 271H of the Act shall be levied by the Assessing officer. 12.14 At this stage, it is required to be noted that earlier section 201(3) of the Act as amended by Finance Act, 2012 amended on 28/5/2012 was specifically made applicable retrospectivel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d relying on amended section invalid by further observing that section as amended not to be given greater retrospectivity than is expressly mentioned. In the aforesaid decision in the case of S.S. Gadgil (supra) in para 12 and 13, the Hon'ble Supreme Court has observed and held as under : 12. In considering whether the amended statute applies, the question is one of interpretation i.e. to ascertain whether it was the intention of the Legislature to deprive a tax payer of the plea that action for assessment or re-assessment could not be commenced, on the ground that before the amending Act became effective, it was barred. Therefore the view that even when the right to assess or reassess has lapsed on account of the expiry of the period of limitation prescribed under the earlier statute, the Income-tax Officer can exercise his powers to assess or re-assess under the amending statute which gives an extended period of limitation was not accepted in Calcutta Discount Company's case, 1953-23 ITR 471 : (AIR 1953 Cal 721). 13. As we have already pointed out the right to commence a proceeding for assessment against the assessee as an agent of a non-resident party under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve intention was that once the new Act came into force, the question whether the assessment in respect of any assessment year after the year ending on 31st March, 1940 was liable to be reopened or not should be decided with reference to the provisions of the new Act. It was argued that the new Act authorized such assessment to be reopened whatever might be the position in regard to the right to re-open such assessment under the old Act. In our opinion, the argument put forward by Mr. Narasaraju is not warranted. It is admitted in this case that the right of the Income Tax Officer to re-open the assessment for the year 1947-48 was barred under the old Act before the new Act came into force. In our opinion it is not permissible to construe Section 297 (2) (d) (ii) of the Act as reviving the right of the Income Tax Officer to reopen the assessment which was already barred under the old Act. The reason is that such a construction of Section 297 (2) (d) (ii) would be tantamount to giving of retrospective operation to that Section which is not warranted either by the express language of the Section or by necessary implication. The principle is based on the well-known rule of interpretati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the end of the assessment year, it was contended on behalf of the Income Tax Officer that the notice issued by him was within the terms of the amended provision and was, therefore, a valid notice. Now the notice issued on 27th March, 1957 was clearly within a period of two years from the end of the assessment year 1954-55 and if the amended provision applied, the notice would be a valid notice. It was, however, held by this Court that notice was not a valid notice inasmuch as the right of the Income Tax Officer to re-open the assessment of the assessee under the unamended provision became barred on 31st March 1956 and the amended provision did not operate against him so as to authorize the Income Tax Officer to commence proceedings for re-opening the assessment of the assessee in a case where before the amended provision came into force, the proceedings had become barred under the unamended provision. At page 240 of the Report (ITR) = (at p. 177 of AIR), Shah, J. speaking or the Court observed as follows:- As we have already pointed out, the right to commence a proceeding for assessment against the assessee as an agent of a non-resident party under the Income Tax Act befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. Section 5 of the Limitation Act, 1963 or the proviso to sub-section (3) of Section l10A of the Act are meant to condone the default of the party on the ground of sufficient cause, But if a party is not able to file an application for no fault of his but because the Tribunal was not in existence, it will not be a case where it can be said that the applicant was prevented by sufficient cause from making the application in time within the meaning of the proviso. The time taken between the date of the accident and the constitution of the Tribunal cannot be condoned under the proviso. Then, will the application be barred under sub-section (3) of Section 110A? Our answer is in the negative and for two reasons: (1) Time for the purpose of filing the application under Section 110A did not start running before the constitution of the Tribunal. Time had started running for the filing of the suit but before it had expired the forum was changed. And for the purpose of the changed forum, time could not be deemed to have started running before a remedy of going to the new forum is made available. (2) Even though by and large the law of limitation has been held to be a proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 KB 335 and it was held that if a statute shortening the time within which proceedings can be taken is retrospective then it is impossible to give good reason, why a statute extending the time within which proceedings be taken, should not be held to be retrospective. 31. The Judicial Committee of Privy Council in Yew Bon Tew v. Kenderaan Bas Mara [1982] 3 All E.R. 833, opined that whether statute has retrospective effect, cannot in all cases safely be applied by classifying statute as procedural or substantive and pointed out in certain situation the Court would rule against a retrospective operation. 32. Limitation provisions therefore can be procedural in the context of one set of facts but substantive in the context of different set of facts because rights can accrue to both the parties. In such a situation, test is to see whether the statute, if applied retrospectively to a particular type of case, would impair existing rights and obligations. An accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is nevertheless a right, even though it arises under an Act which is procedural and a right which is not to be taken away pleading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard to events already past. There is however said to be an exception in the case of a statute which is purely procedural, because no person has a vested right in any particular course of procedure, but only a right to prosecute or defend a suit according to the rules for the conduct of an action for the time being prescribed. But these expressions retrospective and procedural , though useful in a particular context, are equivocal and therefore can be misleading. A statute which is retrospective in relation to one aspect of a case (e.g. because it applies to a pre-statute cause of action) may at the same time be prospective in relation to another aspect of the same case (e.g. because it applies only to the post-statute commencement of proceedings to enforce that cause of action); and an Act which is procedural in one sense may in particular circumstances do far more than regulate the course of proceedings, because it may, on one interpretation revive or destroy the cause of action itself. Whether a statute is to be construed in a retrospective sense, and if so to what extent, depends, on the intention of the legislature as expressed in the wording of the statute, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deral Court developed this line of reasoning by referring to part of the judgment of Williams J. in Maxwell v. Murphy. The passage in the judgment of Williams J. (at page 277) which the Federal Court found of great assistance, as also have their Lordships, reads as follows :- Statutes of limitation are often classed as procedural statutes. But it would be unwise to attribute a prima facie retrospective effect to all statutes of limitation. Two classes of case can be considered. existing statute of limitation may be altered by enlarging or abridging the time within which proceedings may be instituted. If the time is enlarged whilst a person is still within time under the existing law to institute a cause of action the statute might well be classed as procedural. Similarly if the time is abridged whilst such person is still left with time within which to institute a cause of action, the abridgment might again be classed as procedural. But if the time is enlarged when a person is out of time to institute a cause of action so as to enable the action to be brought within the new time or is abridged so as to deprive him of time within which to institute it whilst he still ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d decision, ultimately it is ruled that an accrued right to plead a time barred which is acquired after the lapse of the statutory period is in every sense a right even though it arises under an Act which is procedural. It is further observed and ruled that it is right which is not to be taken away by conferring on the statute a retrospective operation unless such a construction is unavoidable. 13.6 In the case of K.M. Sharma (supra), the Hon'ble Supreme Court in paragraph Nos.14 and 21 has observed and held as under : 14. Fiscal statute more particularly on a provision such as the present one regulating period of limitation must receive strict construction. Law of limitation is intended to give certainty and finality to legal proceedings and to avoid exposure to risk of litigation to litigant for indefinite period on future unforeseen events. Proceedings, which have attained finality under existing law due to bar of limitation cannot be held to be open for revival unless the amended provision is clearly given retrospective operation so as to allow upsetting of proceedings, which had already been concluded and attained finality. The amendment to sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 SCC 1, it was observed as follows : 13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only - 'nova constitutio futuris forman imponere debet non praeteritis' - a new law ought to regulate what is to follow, not the past. (See Principles of Statutory Interpretation by Justice G. P. Singh, 9th Edn., 2004 at page 438.) It is not necessary that an express provision be made to make a statute retrospective and the presumption against a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole. (ibid., page 440). 14. The presumption against retrospective operation is not applicable to declaratory statutes... In determining, therefore, the nature of the Act, regard must be had to the substanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quirement that the words used must expressly provide or clearly imply retrospective operation. The second is that the retrospectivity must be reasonable and not excessive or harsh, otherwise it runs the risk of being struck down as unconstitutional. The third is apposite where the legislation is introduced to overcome a judicial decision. Here the power cannot be used to subvert the decision without removing the statutory basis of the decision. 16. There is no fixed formula for the expression of legislative intent to give retrospectivity to an enactment. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by reenacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the reenacted law. Sometimes the Legislature gives its own meaning and interpretation of the law under which tax was collected and by legislative fiat makes the new meaning binding upon Courts. The Legislature may follow anyone method or all of them. 17. A validating clause coupled with a substantive statutory change is therefore only one of the methods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -4-1989, we are clearly of the opinion that the provisions cannot be given retrospective effect prior to 1-4-1989 for assessments which have already become final due to bar of limitation prior to 1-4-1989. Taxing provision imposing a liability is governed by normal presumption that it is not retrospective and settled principle of law is that the law to be applied is that which is in force in the assessment year unless otherwise provided expressly or by necessary implication. Even a procedural provision cannot in the absence of clear contrary intendment expressed therein be given greater retrospectivity than is expressly mentioned so as to enable the Authorities to affect finality of tax assessments or to open up liabilities, which have become barred by lapse of time. Our conclusion, therefore, is that sub-section (1) of Section 150, as amended with effect from 1-4-1989, does not enable the Authorities to reopen assessments, which have become final due to bar of limitation prior to 1-4-1989 and this position is applicable equally to reassessments proposed on the basis of Orders passed under the Act or under any other law. 14. Now, so far as reliance placed upon the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Finance Act, 2014 and therefore, as such a right has been accrued in favour of the assessee and considering the fact that wherever legislature wanted to give retrospective effect so specifically provided while amending section 201(3) (ii) of the Act as was amended by Finance Act, 2012 with retrospective effect from 1/4/2010, it is to be held that section 201(3), as amended by Finance Act No.2 of 2014 shall not be applicable retrospectively and therefore, no order under section 201(i) of the Act can be passed for which limitation had already expired prior to amended section 201(3) as amended by Finance Act No.2 of 2014. Under the circumstances, the impugned notices / summonses cannot be sustained and the same deserve to be quashed and set aside and writ of prohibition, as prayed for, deserves to be granted. 16. In view of the above and for the reasons stated above, all these petitions succeed. The impugned notices / summonses are held to be invalid and the same are hereby quashed and set aside and the respondents herein are hereby restrained by writ of prohibition from proceedings with the impugned notices / summonses which are, as such, hereby quashed and set aside. Rule is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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