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TMI Blog2016 (2) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 made absolute accordingly in each of the petitions. - Decided in favour of assessee - SPECIAL CIVIL APPLICATION NO. 1623 of 2015, SPECIAL CIVIL APPLICATION NO. 2115 of 2015, SPECIAL CIVIL APPLICATION NO. 4771 of 2015 - - - Dated:- 5-2-2016 - MR. M.R. SHAH AND MR. S.H.VORA, JJ. FOR THE PETITIONER : MR M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 2009-10 at any time after the expiry of two years from the end of the financial year in which the statement is filed for the said years; (F) Your Lordships may be pleased to Declare that the proceedings consequent to notice issued under Section 201 (1) of the Act for Financial Year 2007-08 are barred by the proviso to Section 201 (3); (G) Your Lordships may be pleased to Declare that the Section 2()1 of the Act as amended by the Finance (No.2) Act, 2014 is prospective and does not apply to proceedings where period of passing the orders has expired before 1/10/2014; (H) Pending the hearing and final disposal of the petition Your Lordships may be pleased to stay the impugned Summons dated 9/12/2014, impugned Notices dated 18/12/2014 and impugned Letters dated 18/12/2014, 29/12/2014 and 12/1/2015 issued by Respondent No. 2 at Annexure A Colly.; (I) Ex-parte ad-interim relief in terms of prayer (H) above may kindly be granted; (J) For such further and other reliefs, including costs of this Petition, as this Hon b1e Court may deem fit and proper in the nature and circumstances of the case. 2.01. Special Civil Application No. 2115 of 2015 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under 6.01. The petitioner is engaged in the business of providing tele-communication services and selling service products across the country. According to the petitioner, it is governed by Tele-Communication Interconnection Usage Charges Regulation, 2003 issued by TRAI under the TRAI Act, 1997. That the petitioner filed its TDS statement regularly for the F.Y. 2007-08 for respective quarter. According to the petitioner, the period for passing order under Section 201 (3) expired on 31/03/2011 for relevant financial year. According to the 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. 6.02. 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 Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance Act, 2014 w.e.f. 01/10/2014 wherein Section 201 (3) (i) was omitted. The distinction between cases where statement has been filed and such statements was not filed was removed and the amendment prescribed a common period of limitation i.e. seven years from the end of financial year in which payment was made. The said amendment is not from retrospective date nor does it specifically say that it is from retrospective effect as it was said at the time of amendment by Finance Act, 2014. Therefore the said amendment as on 01/ 10/2014 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. 8.0.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Yew Bon Tew Versus Kenderaan Bas Mara, reported in (1983) 1 AC 553 (Privy Council). 8.3.Mr.Mihir Joshi, learned Senior Advocate appearing on behalf of the petitioner has further submitted that a 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 a litigant for an indefinite period in 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 . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the Commissioner of Sales Tax, on being satisfied on the basis of reasons recorded by the assessing authority that it is just and expedient so to do authorities the assessing authority in that behalf} such assessment or re-assessment may be made after the expiration of the period aforesaid but not after the expiration of eight years from the end of such year notwithstanding that such assessment or re-assessment may involve a change of opinion. Therefore under the proviso the assessment and reassessment may be made after the expiration of the period aforesaid but not after expiration of eight years from the 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 immateria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 201 of the Income Tax Act came into force w.e.f. 01/10/2014 as on which date it had become time barred under the unamended provision. (b) Further in the said judgment the Rule 80(5) of the Bengal Sales Tax Rules, 1941 gave powers to revise the assessment which has been made or order has been passed more than four years previously. It was amended by a notification issued on 30/03/1974 amending w.e.f. 01/11/1971 giving powers to revise the assessment which has been made or the order has been filed more than six years previously. Therefore the rule itself provided for previous six years. Hence the language 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 Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring on behalf of the petitioner in Special Civil Application No. 1623 of 2015. 10.00. All these petitions are opposed by Mr.M.R. Bhatt, learned counsel appearing on behalf of the revenue - Income Tax Department. 10.01. Mr.M.R. Bhatt, learned counsel appearing on behalf of the revenue has vehemently submitted that as in the present petition the respective petitioners have challenged the notices / summonses issued by the respondent No.2, they cannot / may not be entertained solely on the ground that all these petitions are at the stage of Show Cause Notice. It is submitted that it is well settled proposition of law that ordinarily the petition against the Show 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 Versus Union of India and others, rendered in 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. Versus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue has vehemently submitted that the legislature can provide for a larger period of limitation. In support of his above submission, he has heavily relied upon the following decisions of the Hon'ble Supreme Court :- (1).AIR 1963 S.C. 1436 : 48 ITR 154 (Ahmedabad Manufacturing And Calico Printing Co. Ltd. Versus Income Tax Officer and others); (2).1999(2) SCC 77 (Additional Commissioner Vs. Jyoti Traders); (3).2007 (9) SCC 691 (N.Ranga Rao and Sons v. State of Karnataka) (4).1996 (5) SCC 626 (CTO Versus Bishwanath Jhunjhunwala). 10.06. Mr.M.R. Bhatt, learned counsel appearing on behalf of the revenue has further submitted that in the present case section 201(3) does not provide that the period is available only where limitation has not expired. It is submitted that as such the law that prevailed at the time of issuance 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. 10.07. Mr.M.R. Bhatt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is submitted that in the aforesaid decision in the case of Ahmedabad Manufacturing Calico Printing Co. Ltd. (supra) was not brought to the notice of the Hon ble Court which is a Constitution Bench decision. It is submitted that, therefore, the decision in the case of Poolpandi Versus Superintendent, Central Excise, reported in 1992 (3) SCC 259 and decision in the case of CTO Versus Bishwanath Jhunjhunwala, reported in 1996 (5) SCC 626, which take note of the aforesaid Constitutional Bench decision, are required to be applied. 10.11. Mr.M.R. Bhatt, learned counsel appearing on behalf of the revenue has further submitted that even in the decision in the case of Thirumalai Chemicals Ltd. (supra), it is held that the aspect of limitation is a procedural matter. Making above submissions and heavily relied upon the statement and objects of amendment in Section 201(3) of the Act and relying upon the above decisions, it is requested to dismiss the present petitions. 11.00. Heard the learned counsel appearing on behalf of the respective parties at length. 11.01. At the outset, it is required to be noted that in the present petitions, the petitioners have challenged the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 with retrospective effect from 1/6/2002 reads as under : Consequences of failure to deduct or pay. 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 Act; or (b) referred to in sub-section (IA) of section 192, being an employer, does not deduct, or does not pay, or after so deducting fails to pay, the whole or any part of the tax, as required by or under this Act, then, such person, shall, without prejudice to any other consequences which he may incur, be deemed to be an assessee in default in respect of such tax: Provided that no penalty shall be charged under Section 221 from such person, unless the Assessing Officer is satisfied that such person, without good and sufficient reasons, has failed to deduct and pay such tax. (1A) Without prejudice to the provisions of sub-section (1), if any such person, principal officer or company as is referred to in that sub- 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 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of sub-section (3) of section 200. (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 sub-section (1A) shall be a charge upon all the assets of the person, or the company, as the case may be, referred to in sub-section (1). (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). four years from the end of the financial year in which payment is made or credit is given, in any other case : Provided that such order for a financial year commencing on or before the 1st day of April, 2007 may be passed at any time on or before the 31st day of March, 2011. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n up or completed after substantial time has elapsed. Therefore, by Finance Act No.2 of 2009 sub-sections (3) and (4) came to be introduced w.e.f. 1/4/2010 and it provided that an order under section 201(1) for failure to deduct the whole or any part of the tax as required under the Act, if the deductee is a resident payer, shall be passed within two years from the end of the financial year in which statement of tax deducted at source is filed by the deductor. It further provides that where no such statement is filed, said order can be passed up till 4 years from the end of the financial year in which payment is made or credit is given. 12.07. At this stage, it is required to be noted that subsection (3)(i) of section 201 came to be introduced by Finance Act No.2 of 2009 which provided that such order for a financial year commencing on or before the 1st day of April 2007 may be passed at any time on or before 31st day of March, 2011. As per Memorandum of Finance Bill No.2 of 2009, in respect of F.Y.2007-08 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. 12.08. The rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to in section 200 of the Act were not filed, was extended from four years to six years. 12.09. It is also required to be noted that other provisions of section 201(3) clause (1) and proviso thereof remain same including last date for passing order for F.Y. 2007-08. 12.10. At this stage, it is required to be noted that in the present cases, limitation for passing orders as per the provisions prevailing at the relevant time and even as provided under section 201(3)(i) as amended by Finance Act of 2012 had already expired on 31/3/2011 and 31/3/2012, respectively. 12.11. That thereafter, section 201(3) of the Act has been further amended by Finance Act No.2 of 2014 w.e.f. 1/10/2014, by which, time limit provided under section 201(3)(ii) of the Act for passing order under section 201(1) of the Act came to be extended by one year and it also provides that no orders shall be made under sub-section (1) holding a person to be in default for failure to deduct whole or part 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, ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the deductor. Therefore, there there is no rationale for not treating the deductor as assessee in default in respect of the TDS default after two years only on the basis that the deductor has filed TDS statement as TDS defaults are generally in respect of the transaction not reported in the TDS statement. It is, therefore, proposed to omit clause (i) of sub-section (3) of section 201 of the Act which provides time limit of two years for passing order under section 201(1) of the Act for cases in which TDS statement have been/filed. Currently, clause (ii) of section 201(3) of the Act provides a time limit of six years from the end of the financial year in which payment / credit is made for passing of order under section 201(1) of the Act for cases in which TDS statement has not been filed. However, notice under section 148 of the Act may be issued for reassessment up to 6 years from the end of the assessment year for which the income has escaped assessment. Therefore, 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court has observed and held that in absence of an express provision or clear implication, legislature does not intend to attribute to the amending provision a greater retrospectivity than is expressly mentioned, nor to authorize the Income Tax Officer to commence proceedings which before the new Act came into force had upon the expiry of the period provided, become barred. In the aforesaid decision, the Hon'ble Supreme Court had an occasion to consider the question, as to, whether in case where the right to assess or reassess has lapsed on account of expiry of the period of limitation prescribed under the earlier statute, the Income Tax Officer can exercise his powers to assess or reassess under the amending statute which gives an expressly period of limitation and to that, the Hon'ble Supreme Court has noted decision of the Calcutta High Court in the case of Calcutta Discount Company Ltd. reported in 1953 (23) ITR 471 (AIR 1953 Calcutta 721) and consequently has held the notice issued 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Hon'ble Supreme Court in the case of J. P. Jani, Income Tax Officer, Circle IV, Ward-G, Ahmedabad and another, versus Induprasad Deveshanker Bhatt, reported in AIR 1969 S.C. 778 and while interpreting section 297(2)(d)(ii) of the Income Tax Act, after considering the earlier decision of the Hon'ble Supreme Court in the case of S. S. Gadgil versus Lal and Co., [1964-53 ITR 231 = AIR 1965 SC 171], the Hon'ble Supreme Court in para 5 and 6 has observed and held as under :- 5. On behalf of the appellants Mr. Narasaraju stressed the argument that the High Court was in error in holding that the provisions of the new Act of 1961 were not applicable in cases where the time limit fixed in the old Act had expired before the coming into force of the new Act. It was contended that Section 297 (2) (d) (ii) of the new Act was wide in its sweep and it took in all assessment years after the year ending on 31st March, 1940 irrespective of the question whether the right to reopen the assessment in respect of any such assessment years was barred or not under the old Act at the date when the new Act came into force. According to Mr. Narasaraju the legislative intention was tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out by the decision of this court in S. S. Gadgil v. Lal and Co., 1964-53 ITR 231= (AIR 1965 SC 171). In that case, a notice was issued against the assessee as an agent of a non-resident on 27th March, 1957 and that notice related to the assessment year 1954-55. Under clause (iii) of the proviso to Section 34 (1) as it stood prior to its amendment by the Finance Act, 1956, a notice of assessment or reassessment could not be issued against a person deemed to be an agent of a nonresident after the expiry of one year from the end of the year of assessment. The right to commence a proceeding for assessment against the assessee as agent of a non-resident for the assessment year 1954- 55 therefore ended on 31st March, 1956 under the new Act before its amendment in 1956. This provision was, however, amended by the Finance Act, 1956 and under the amended provision the period of limitation was extended to two years from the end of the assessment year. The amendment was made on 8th September, 1958 but was given effect from 1st April, 1956. Since the time within which notice could be issued against a person deemed to be an agent of a non-resident was extended to two years from the end of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commence proceedings which before the new Act came into force had by the expiry of the period provided become barred . 6. In our opinion, the principle of this decision applies in the present case and it must be held that on a proper construction of Section 297 (2) (d) (ii) of the new Act, the Income Tax Officer cannot issue a notice under Section 148 in order to re-open the assessment of an assessee in a case where the right to re-open the assessment was barred under the old Act at the date when the new Act came into force. It follows therefore that the notices dated 13-11-1963 and 9-1-1964 issued by the Income Tax Officer, Ahmedabad were illegal and ultra vires and were rightly quashed by the Gujarat High Court by the grant of a writ. 13.03. In the case of New India Insurance Comnpany Ltd. versus Smt. Shanti Misra, Adult reported in (1975) 2 SCC 840, in para 7 the Hon'ble Supreme Court has observed and held as under : 7. In our opinion taking recourse to the proviso appended to sub-section (3) of Section 110A for excusing the delay made in the filing of the application between the date of the accident and the date of the constitution of the Tribunal is not co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply to all legal proceedings brought after their operation for enforcing cause of action accrued earlier, but they are prospective in the sense that neither have the effect of reviving the right of action which is already barred on the date of their coming into operation, nor do they have effect of extinguishing a right of action subsisting on that date. Bennion on Statutory Interpretation 5th Edn.(2008) Page 321 while dealing with retrospective operation of procedural provisions has stated that provisions laying down limitation periods fall into a special category and opined that although prima facie procedural, they are capable of effectively depriving persons of accrued rights and therefore they need be approached with caution. 30.Learned author in order to establish the above proposition referred to the decision of the Court of Appeal in The Ydun case [THE YDUN (1899) Probate Division at page 236 (The Court of Appeal) where the Court held that the amending legislation dealt with procedure only and therefore applied to all actions whether commenced before or after the passing of the Act and even in respect of previously accrued rights. The principle laid down in The Yd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons may be described either as procedural or as substantive. For example, in English law, at the expiration of the period prescribed for any person to bring an action to recover land, the title of that person to the land is extinguished. Such a limitation therefore goes to the cause of action itself. In most cases however the English Limitation Act only takes away the remedies by action or by set-off; it goes only to the conduct of the suit; it leaves the claimant's right otherwise untouched in theory so that, in the case of a debt, if the statute-barred creditor has any means of enforcing his claim other than by action or set-off, the Act does not prevent his recovering by those means. In this sense, the 1948 Ordinance and the 1974 Act are procedural. Cf. Harris Vs. Quine (1869) L.R. 4 Q.B. 653 and Rodriguez Vs. Parker [1967] 1 Q.B. 116. Apart from the provisions of the Interpretation Statutes, there is at common law a prima facie. Rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause of action, was prospective in relation to an action to enforce that cause of action. Their Lordships mention the learned judge's comment only to illustrate the different senses in which a statute can be said to be retrospective or prospective. The Defendants appealed. The Federal Court adopted a more flexible approach to the procedural test: - The pertinent question for determination is the nature of [the 1974 Act] - does it affect rights or procedure? An Act which makes alteration in procedure only is retrospective : see The Ydun . In our view there are no cases upon which differences of opinion may more readily be entertained, or which are more embarrassing to dispose of, than the cases where the court has to decide whether or not an amending statute affects procedure and consequently will operate retrospectively or affects substantive rights and therefore in the absence of a clear contrary intention, should not be read as acting retrospectively. The distinction between procedural matters and substantive rights must often be of great fineness. Each case therefore must be looked at subjectively; there will inevitably be some matters that are classified as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decisive effect on an existing cause of action would not be merely procedural in any ordinary sense of that expression. Their Lordships assume (without expressing an opinion) that The Ydun case was, on its facts, correctly decided. Their Lordships consider that the proper approach to the construction of the 1974 Act is not to decide what label to apply to it, procedural or otherwise but to see whether the statute, if applied retrospectively to a particular type of case, would impair existing rights and obligations. The Appellants assert that a Limitation Act does not impair existing rights because the cause of action remains, on the basis that all that is affected is the remedy. There is logic in the distinction on the particular facts of The Ydun case, because the right to sue remained, for a while, totally unimpaired. But in most cases the loss, as distinct from curtailment, of the right to sue is equivalent to the loss of the cause of action. The Public Authorities Protection Act can be regarded as procedural on the facts of The Ydun case, but a slight alteration to those facts would have made it substantive. A limitation act may therefore be procedural in the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. 13.07. In the case of Manan Corporation Vs. Assistant commissioner of Income-tax, reported in 356 ITR 44, the Division Bench of this court in para 28 and 30 has observed and held as under :- 28. ... In the case of Commissioner of Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 upon to construe the provisions and answer the question whether the Legislature had sufficiently expressed that intention giving the statute retrospectively. Four factors are suggested as relevant : (i) general scope and purview of the statute; (ii) the remedy sought to be applied; (iii) the former state of the law; and (iv) what it was the Legislature contemplated (page 388). The rule against retrospectivity does not extend to protect from the effect of a repeal, a privilege which did not amount to accrued right (page 392). 30. In the case of National Agricultural Co-operative Marketing Federation of India Ltd. and another, vs. Union of India and others reported in AIR 2003 SC 1329, the Hon'ble Supreme Court has held in paragraphs 15, 16 and 17 as under : 15. The legislative power either to introduce enactments for the first time or to amend the enacted law with retrospective effect, is not only subject to the question of competence but is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) of Section 150 is not expressed to be retrospective and, therefore, has to be held as only prospective. The amendment made to subsection (1) of Section 150 which intends to lift embargo of period of limitation under Section 149 to enable Authorities to reopen assessments not only on the basis of Orders passed in proceedings under the IT Act but also on Order of a Court in any proceedings under any law has to be applied prospectively on or after 1-4- 1989 when the said amendment was introduced to subsection (1). The provision in sub-section (1) therefore can have only prospective operation to assessments, which have not become final due to expiry of period of limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Finance Act, 2014, more particularly when it has been expressly provided and/or made prospective w.e.f. 1/4/2010. 14.01. Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Biswanath Jhujhunwala Anr. (supra) by the learned counsel appearing on behalf of the revenue is concerned, considering the language used in the notification which felt for consideration by the Hon'ble Supreme Court and observations made by the Hon'ble Supreme Court in para 12 and 13 and considering the provisions of section 201 as amended by Finance Act, 2014 and the Statement and Object while amending section 201, as referred to hereinabove, the said decision shall not be applicable to the facts of the case on hand. 15.00. Considering the law laid down by the Hon'ble Supreme Court in the aforesaid decisions, to the facts of the case on hand and more particularly considering the fact that while amending section 201 by Finance Act, 2014, it has been specifically mentioned that the same shall be applicable w.e.f. 1/10/2014 and even considering the fact that proceedings for F.Y. 2007-08 and 2008-09 had become time barred and/or for the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X
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