9911796707
TMI Blog1994 (9) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... e-tax Act, 1961, gave rise to the aforesaid writ petitions. The assessments (annexure "P-1") were finalised on March 23. 1984, and March 28, 1985, respectively, and the notices aforesaid were issued on November 19, 1990 (annexure "P-2"). The challenge to the notices aforesaid is on the ground of limitation. As per law prevalent, on April 1, 1981, notices could be issued within eight years of conclusion of the assessment year after obtaining necessary sanctions. However, the Income-tax Act was amended with effect from April 1, 1989, and the period of eight years was extended to ten years. Thus, the short question for consideration in these writ petitions is about the applicability of the amendment made in the year 1989 to the assessments mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 663 ; [1983] 53 STC 315. That was a case under the Orissa Sales Tax Act. While making the assessment under section 12(4), treating the gross turnover of inside sales as returned by the assessee as their taxable turnover, the assessee's claim for deduction of sales to registered dealers was disallowed. The assessee filed a writ petition in the High Court, challenging the assessments on the ground that the Sales Tax Officer had acted in flagrant violation of the rules of natural justice, as proper opportunity was not afforded to the assessee. The High Court dismissed the petition on the ground that assessee had a right of appeal and this was not a case of inherent lack of jurisdiction. The assessee approached the Supreme Court by a special le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate to interfere in the exercise of the powers under article 226 of the Constitution. The parties should be relegated to the remedy available under the statute to raise disputed questions of fact on the merits as well as on the question of jurisdiction." The ratio of the decisions aforesaid cannot be applied to the cases in hand. No doubt, the question of limitation could be taken up by the petitioner in response to the notices issued, however, such a question is not dependent upon proof of any facts. In the present cases, there is no dispute regarding the facts and the only question involved is about the applicability of the amending Act ; in other words, as to whether notices have been issued within the period of limitation pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment was made after first day of April of the financial year, it was held that the same would not apply for finalising of the assessment for the assessment year. To the same effect, reference has been made to the decision of this court in L. Rajeshwar Pershad v. CIT [1986] 159 ITR 920, wherein the decision of the Supreme Court in Karimtharuvi Tea Estate Ltd.'s case [1966] 60 ITR 262 was relied upon. That was a case of amendment of section 2(14)(ii) of the Income-tax Act, which came into force with effect from April 1, 1973, which was held applicable to the capital gains of sale of jewellery/ ornaments taxable for the assessment year 1973-74. The aforesaid decisions are not helpful in deciding the question of law raised in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed under the Act expires, the liability cannot be imposed by the authorities, the reason being that the assessee should not be subjected to unending hardship. However, before the limitation prescribed expires, if the same is enlarged, the limitation being a procedural one, the extended period of limitation will apply to such proceedings." Reliance was placed on the decision of the Supreme Court in S. C. Prashar v. Vasantsen Dwarkadas [1963] 49 ITR 1, 55 (SC) and the following passage therefrom was relied upon (at page 747 of 107 ITR) : "On the expiry of the period the assessments, if any, may also become final and conclusive but only so long as the law is not altered retrospectively. Under the scheme of the Income-tax Act, a liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the Full Bench decided the question in favour of the Revenue. The Orissa High Court also considered the question of amendment of section 275 of the Income-tax Act in CIT v. Soubhagya Manjari Devi [1976] 105 ITR 82. Regarding the period during which a penalty could be imposed, such a provision was held to be procedural. So far as the quantum is concerned, there was no question of retrospective operation of the amending provisions. However, with regard to the procedural aspect, it was held that the law was clear that when there was any change in law, pending proceedings were to be governed by new law. On behalf of the petitioner, reliance has also been placed on the Division Bench judgment of this court in CWT v. Hira Lal Mehra [1994] ..... X X X X Extracts X X X X X X X X Extracts X X X X
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