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TMI Blog2018 (8) TMI 1790X X X X Extracts X X X X X X X X Extracts X X X X ..... catory amendment has retrospective effect. Under the above facts, circumstances and the reasons as discussed above, we have come to the conclusion that the petition is time barred. X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed to full and final settlement of the dues at Rs. The Corporate Debtor in pursuant to the Debt Settlement Agreement dated 01.03.2017 made few payments. However, the Corporate Debtor never honoured the terms and conditions of the said debt settlement agreement in full. Thus, after receiving some payments on various dates, the total amount payable by the Corporate Debtor to the operational creditor stood at Rs. as on 16.01.2018. 6. On 14.02.2018 the operational creditor issued demand notice to the corporate debtor under the provisions of Section 8 of the 1B Code, but, according to the petitioner, till the date of filing this application, no payment is received and notice of dispute has also not been received. 7. This Applicant filed the Application with this Tribunal on 27th April, 2018 for initiation of Corporate Insolvency Resolution Process under Section 9 of the Insolvency and Bankruptcy Code, 2016 read with Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. The Applicant also filed copies of Invoices/payment collection memo, purchase orders, copies of the Bank statements, copy of demand notice, copy of written communication receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nent to mention herein that, in view of the recent amendment made in the Insolvency and Bankruptcy Code, 2016 by inserting Section 238A, the provisions of the Limitation Act, 1963 are attracted which read as under ".....the provisions of Limitation Act, shall, as far as may apply to the proceedings or appeals before the Adjudicating Authority. 14. Hence, in view of the above amendment, the instant application is time barred and hit by Section 18 of the Limitation Act, 1963. The amount of debt has become due and payable on 26.02.2013. That apart, the relevant provisions of Limitation Act are as under: Article 137 of the Limitation Act, 1963 Art. 137. Any other application for which no period of limitation is provided elsewhere in this division Three years When the right to apply accrues and further as per Schedule given below, the time prescribed is 3 years. The Schedule: PERIODS OF LIMITATION [See sections 2(j) and 3] FIRST DIVISION - SUITS PART II - SUITS RELATING TO CONTRACTS Description of Suit Period of Limitation Time from which period begins to run For the price of goods sold and delivered where no fixed period of credit is agreed upon. Three years Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other hand, learned counsel for the Revenue submitted that the proviso is merely declaratory and does not change the legal position as existed before the amendment. It was submitted that this Court in CIT v. Chittor Electric Supply corpn [(1995) 2 SCC 430: (1995) 212 ITR 404] has held that proviso (a) to Section 240 is declaratory and, therefore, proviso (b) should also be held to be declaratory. In our view that is not the correct position in law. Where the proviso consists of two parts, one part may be declaratory but the other part may not be so. Therefore, merely because one part of the proviso has been held to be declaratory it does not follow that the second part of the proviso is also declaratory. However, the view that we have taken supports the stand of the Revenue that proviso (b) to Section 240 is also declaratory. We have held that even under the unamended Section 240 of the Act, the assesse was only entitled to the refund of tax paid in excess of the tax chargeable on the total income returned by the assesse. We have held so without taking the aid of the amended provision. It, therefore, follows that proviso (b) to Section 240 is also declaratory. It seeks to clarify t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture of the Act, regard must be had to the substance rather than to the form. If a new Act is 'to explain' an earlier Act, it would be without object 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. The language 'shall be deemed always to have meant' is declaratory, and is in plain terms In the absence of clear words retrospective. indicating that the amending Act is declaratory, it would not be so construed 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 larifi 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." Thus, in view of the judgment of the Hon'ble Supreme Court, delivered on 14.08.2018, a clarificatory amendment has retrospective ..... 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