2008 (1) TMI 855 - HC - VAT and Sales Tax

Jurisdiction on part of the assessing authority - assessment orders set aside - notices for fresh assessment - Held that - The said section 17(1) of the Amending Act only validates actions already taken before the commencement of that provision. The provision means that if an action of the nature mentioned therein has been taken and such action would not be valid but for the Amending Act, it will be protected by the legal presumption that the Amending Act was existing on the date of such action. It cannot by any stretch of the language be utilised to confer power for future action of issuing of notice for starting proceedings for fresh assessment or reassessment. This writ petition is allowed and the impugned notices enclosed as annexure 1 to this writ petition for the assessment years specified above (cumulatively filed as annexure 1 to this writ petition) and all consequent proceedings are quashed.

Issues:
1. Lack of jurisdiction on part of assessing authority.
2. Challenge to notices for fresh assessment under section 21(4A) of the U.P. Trade Tax Act, 1948.
3. Insertion of sub-section (4A) in section 21 of the Principal Act.
4. Retrospective effect of the newly inserted sub-section (4A).
5. Interpretation of retrospective application in amendments.
6. Validity of actions under section 17 of the Amending Act.

Analysis:
1. The petitioner's assessment orders were set aside due to the lack of jurisdiction on the part of the assessing authority for various assessment years. Notices for fresh assessment under section 21(4A) of the U.P. Trade Tax Act, 1948 were issued to the petitioner for each of the assessment years, challenging which the petitioner filed a writ petition.

2. The challenge was based on the insertion of sub-section (4A) in section 21 by the Uttar Pradesh Sales Tax (Amendment) Act, 1992. The petitioner argued that the retrospective effect of this amendment was not expressly provided for, leading to a specific interpretation issue regarding the application of the newly inserted sub-section.

3. The court examined the legislative intent behind the amendment and noted that the wording of sub-section (4A) indicated a limited scope of application, focusing on cases where assessments were quashed after January 1, 1992. The petitioner relied on Supreme Court decisions emphasizing the need for express retrospective intent in amendments.

4. The court analyzed the principle of retrospectivity in amendments, highlighting that procedural changes are typically given retrospective effect for pending proceedings but not to reopen concluded matters. The importance of vested rights in legal proceedings and the necessity of legislative clarity for retrospective application were emphasized.

5. The Standing Counsel argued for retrospective application of amendments related to limitations on procedural grounds. However, the court emphasized that retrospective effect should not infringe on vested rights or reopen concluded proceedings unless expressly provided by the Legislature or implied by the nature of the provision.

6. The court rejected the reliance on section 17 of the Amending Act to infer retrospectivity, clarifying that it only validated past actions and did not confer power for future actions like issuing notices for fresh assessments. The decision in a previous case was distinguished based on the specific statutory language involved.

In conclusion, the court allowed the writ petition, quashing the impugned notices and subsequent proceedings for the specified assessment years, based on the lack of retrospective intent in the relevant amendment and the protection of vested rights in legal proceedings.

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