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TMI Blog1991 (8) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... evise the assessment orders for earlier periods and this purported enlargement is attacked as conflicting with section 2 of the earlier Amendment Act. Therefore, this enlargement of the jurisdiction will have to be confined to the period stated in the Karnataka Act 14 of 1983, according to the petitioners. The Act was originally enacted in the year 1957 and it levies a tax on the agricultural income, for which purpose, apart from the charging provision, several machinery sections were also enacted. Section 35 empowered the Commissioner to call for and examine the record of any proceeding under the Act and, if he considers that any order passed therein by any authority subordinate to him is erroneous in so far as it is prejudicial to the interests of the Revenue, after complying with the principles of natural justice, the Commissioner may pass such order thereon as the circumstances of the case may justify. The purpose of this provision is quite clear and is similar to the revisional powers created under the provisions of the Income-tax Act, Sales Tax Act, etc., to safeguard the interests of the Revenue. There was no such officer called a joint Commissioner " in the original Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accounting period (previous year), prior to the previous year ending on or after March 31, 1982. In other words, there has been no dispute that the joint Commissioner was competent to exercise the revisional power under section 35 in respect of any assessment order pertaining to the agricultural income derived during any previous year ending on or after March 31, 1982. But, in the case of assessment orders relating to any period earlier to the previous year ending on March 31, 1982, but made subsequent to the date of the earlier Amendment Act, it was doubtful as to whether the joint Commissioner could exercise his power of revision regarding these assessment orders. Hence, the Legislature added an Explanation to section 35 by enacting section 8 in Karnataka Act 23 of 1985. This Karnataka .Act 23 of 1985 is deemed to have come into force on April 1, 1985. Section 8, which is relevant, reads thus : "Amendment of section 35. - In section 35 of the principal Act, (1) for sub-section (2), the following shall be substituted, namely:- '(2) No power shall be exercisable under sub-section (1) after the expiry of four years from the date of the order sought to be revised.' (2) after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions would prevail notwithstanding anything contained in the principal Act. According to Sri Ramabhadran, the Explanation added by the Karnataka Act 23 of 1985 is in conflict with section 2 of the earlier Amendment Act (Act 14 of 1983) and, therefore, to harmonise the two provisions, the Explanation should be confined to empowering the joint Commissioner to revise the orders which satisfy section 2 of the earlier Amendment Act. Learned counsel pointed out that section 2 of the earlier Amendment Act was not modified or amended while enacting the subsequent Act No. 23 of 1985 and the non obstante provision in section 2 of the earlier Amendment Act is still in force. Learned counsel cited a decision of the Bombay High Court in Ritz Ltd. v. Union of India [1990] 184 ITR 599. The court, there, was concerned with clause (c) of the Explanation to section 263(1) of the Income-tax Act. The main section 263(1) of the Income-tax Act is almost similar to section 35 of the Act which vests In the Commissioner a similar revisional power. Since the category of orders that could be the subject-matter of revision by the Commissioner required enumeration by amplifying the scope of section 263(1), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the Explanation itself was inserted can all be given proper meaning if it is held that these words are to be read in the Explanation right from the date the Explanation itself was inserted. Thus, only in cases where action under section 263 is taken after June 1, 1988, the merger of the assessment order will be treated as confined to the issues actually considered and decided in appeal in terms of Explanation (c). In my judgment, the construction placed herein is based on sound logic, namely, irrespective of the language in which the amending provisions are couched, the amendment cannot be retrospective with effect from a date earlier to the date on which the provision sought to be amended itself was brought on the statute book. " From the last sentence of the above passage, it is clear that clause (c) of the Explanation being part of the Explanation, cannot travel beyond the scope of the Explanation and that is how the Bombay High Court viewed the question raised before it. In the instant case, the provision involved is quite different. No doubt, initially, the earlier Amendment Act vested the power of revision in the joint Commissioner and, at the same time, stated that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered by the assessment orders. A special provision normally excludes the operation of a general provision and we are of the view that such a principle governs the instant case. In South India Corporation (P.) Ltd. v. Secretary, Board of Revenue [1964] 15 STC 74 ; AIR 1964 SC 207, the Supreme Court had to consider whether article 277 or article 372 of the Constitution should govern the particular fact situation involved therein. The Supreme Court pointed out that a special provision should be given effect to the extent of its scope, leaving the general provision to control cases where the special provision does not apply. In the instant case, the Explanation was added to section 35 to remove the difficulty caused in the administration of the Act so that the joint Commissioner also may exercise the powers vested in the Commissioner, for the purpose of section 35. The problem posed by restricting the orders that can be the subject-matter of revision by the joint Commissioner had to be cleared and the object of this amendment by which the Explanation was added to section 35 was to clearly declare the competence of the joint Commissioner to revise the orders, provided the power is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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