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TMI Blog1975 (4) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was accepted, was that the assessment had been made in accordance with rule 28 of the Delhi Sales Tax Rules, 1951, which was held to be ultra vires for excessive delegation. After quashing the assessment the following observations were made: "It will, however, be open to the respondents to make fresh and/or proper assessment in accordance with law." The petitioner in this case had applied for refund of a sum of Rs. 3,170.25, which he had deposited as sales tax for the year involved by means of an application dated 31st August, 1966. In respect thereto the abovesaid notice dated 25th November, 1966, was issued to the petitioner placing reliance on the abovesaid observations of S.K. Kapur, J. An objection was raised by the petitioner to the issue of the said notice on the ground that the said notice was on its face beyond four years after the expiry of the period of assessment year ending 31st March, 1955, and that there would not be any notice issued in respect of the assessment year ending 31st March, 1955, beyond 31st March, 1959, and that it would not be possible to rely on any observation of S.K. Kapur, J., to get over the period of the said limitation; S.K. Kapur, J., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , had retrospective operation; the order of S.K. Kapur, J., itself having been passed within four years of the said amendment the issue of the notice was in time and could not be questioned. It was also pointed out that it was immaterial that the proviso was enacted after 31st March, 1959, that is, beyond four years of the expiry of the assessment year on 31st March, 1955. Reliance was placed for the revenue before me on the decision of D.K. Kapur, J., in Hari Mal Dharam Vir v. Union of IndiaC.W. No. 160 of 1967 decided on 27th July, 1973 (Delhi High Court), In the case of Hari Mal Dharam Vir(1) also, S.K. Kapur, J., had quashed the assessment for the period 1st October, 1956, to 31st December, 1956, by his order dated 20th July, 1966, because in that case also (as in Gurbaksh Singh[1966] 18 S.T.C. 500. the assessment was based on rule 28, which had been struck down. In that case also, S.K. Kapur, J, had made observations similar to what he had made in S.B. Gurbaksh Singh[1966] 18 S.T.C. 500., that it was open to the assessing authority to make a fresh assessment with respect to the above period if and to the extent permissible by law. It may be noticed that in the case of Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment of the assessee for the year 1948-49. The further facts of that case were that the Sales Tax Officer had made a best judgment assessment of a public limited company on 31st March, 1952, in respect of the assessment year 1948-49, which was set aside by the Judge (Appeals), Sales Tax, on the ground that the appellantcompany was not a dealer. But this order was set aside by the Judge (Revisions), Sales Tax, on 28th March, 1955, and it was remanded to the Sales Tax Officer for fresh assessment. Then notice was issued by the Sales Tax Officer for production of account books, etc., on 23rd July, 1955, for the purpose of the assessment year 1948-49. A single Judge of the Allahabad High Court, on being moved for the issue of a writ under article 226, held that the assessment sought to be made was clearly barred by time under section 21 of the U.P. Sales Tax Act. But this order was reversed by a Division Bench on appeal, which held that in view of the order of remand, which ordered a fresh assessment the period of limitation did not apply. There was a further appeal by special leave to the Supreme Court which confirmed the decision of the Division Bench, but on different groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the new Act had come into force (page 90). The mere enforcement of that Act by the time the order of assessment was passed by the Sales Tax Officer cannot lead to the conclusion, it was observed, that the assessment of the respondent was made under the new Act and not under the repealed Act. When the new Act came into force (on 1st April, 1959) all rights, title, obligation or liability already acquired, accrued or incurred under the repealed Act by the respondent remained unaffected and were intact. The rights and liabilities having to be determined under the old Act the period of limitation was only three years for making a reassessment on the ground of under-assessment, escapement or wrong deduction (sic) had to be done only within three years and not five years as laid down by the new Act. The amending Act had not come into force when the High Court decided the above case and, consequently, there was no occasion to consider its effect. The decision of the High Court would remain unaffected even after the amendment, the decision being to the effect that the limitation applicable to the case was under the old repealed Act. In Swastik Oil Mills Ltd. v. H.B. Munshi, Deputy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The relief remains unaffected by the change of the procedure The procedure for enforcing a right is no portion of that right, nor does it alter or affect it." (emphasis* supplied). The law of limitation being a branch of the law of procedure, what applied to a suit would be the law in force at the time of its institution: vide the Full Bench decisions of the Madras and Allahabad High Courts (Rajah of Pittapur v. Venkata Subba Row[1916] I.L.R. 39 Mad. 645. A.I.R. 1963 S.C. 1356 at 1386 and 1392. and Bankey Lal v. BabuA.I.R. 1953 All. 747. Hidayatullah, J. (as he then was), dealing with the case arising out of section 34 of the Income-tax Act, 1922, pertaining to a period of limitation similar to the one in question observed as follows in S.C. Prashar v. Vasantsen [1963] 49 I.T.R. 1 at 55-56 and 67 (S.C.);: "Under the scheme of the Income-tax Act a liability to pay tax is incurred when according to the Finance Act in force the amount of income, profits or grains is above the exempted. That liability to the State is independent of any consideration of time and, in the absence of any provision restricting action by a time-limit, it can be enforced at any time. What the law does is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y; if prior to the expiry of the prescribed period the said fetter is either relaxed or removed by the legislature by amending the Act, it is the period prescribed by the amending Act that would apply. The placing of such a fetter on the jurisdiction of the assessing authority, whether it amounts to a rule of limitation or not, will still be a piece of adjectival or procedural law. Since such a fetter does not create any vested right in the assessee it can always be removed or relaxed by the legislature. The above aspects have been discussed at considerable length in a series of decisions rendered by the Andhra Pradesh High Court. It may be sufficient to refer to the decision of Gopal Rao Ekbote, J., who spoke for a Full Bench of that Court in Allied Exports Imports v. State of Andhra Pradesh[1971] 28 S.T.C. 175. In that case the petitioner-firm was assessed to sales tax for the year 1956-57 by an assessment order dated 30th September, 1958. Subsequently the assessing authority issued a notice to reassess and by its order dated 31st March, 1963, included an additional turnover in the assessment, as escaped turnover. During the assessment year 1956-57 it was the Madras General S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id Supreme Court decision was distinguished after observing that but for this "difference", D.K. Kapur, J., would have considered himself bound by the abovesaid decision of the Supreme Court. D.K. Kapur, J., was pressed by the fact that the order passed by S.K. Kapur, J., would become "meaningless" unless section 11(2a) was read in a "wider" sense, construing it as the equivalent of a "command". If the matter had stood here and it was necessary for me to decide the said question in the present case, I would, with respect, have found it necessary to refer the present case to a larger Bench for decision pertaining to the interpretation of section 11(2a) on the analogy furnished by the abovesaid decision of the Supreme Court concerning a somewhat similar provision of the Indian Income-tax Act. I am, however, relieved from the necessity of making any such reference in the view that it is sufficient for the purpose of the present case to rest the decision on a ground, not discussed by Dalip Kapur, J., namely, that by the time the amending Act was passed in the present case, the period of limitation for the assessment had run out. The decision rendered by Yogeshwar Dayal, J. (speaking fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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