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TMI Blog2020 (7) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... t the order passed by the assessing officer under section 201(1)/ 201(1 A) of the Income-tax Act, 1961 ("the Act") was time barred and, therefore, without jurisdiction and void ab initio. 1.1 That the CIT(A) erred on facts and in law in holding that provisions of sub-section (3) of section 201 of the Act, as amended with effect from 01.10.2014, were applicable to assessment year under consideration, not appreciating that the time limit for passing order under sub-section (1) had already lapsed before insertion of the amended provision. 1.2 That the CIT(A) erred on facts and in law in not appreciating that the impugned order passed under section 201(1) and 201(1 A) of the Act was beyond limitation also for the reason that proceedings under the said sections were initiated after expiry of period of four years from the end of the relevant financial year. 2. That, without prejudice, the CIT(A) erred on facts and in law in upholding the order passed by the assessing officer under section 201(1) and section 201(1 A) of the Act, not appreciating that since the payees were not known in respect of the provision for various expenses made at the end of the relevant financial year, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee also objected that there is no liability to deduct tax at source on 'year end provisions' which was reversed on the first date of next month. The ld CIT(A) noted that new information was coming to the ld AO after the amendment to section 201(3) by the Finance Act No. 2 of 2014 w.e.f 01.10.2014, according to that amendment the time limit is extended upto 7 years and therefore, the order passed by the ld AO is not time barred. He further held that the ld AO has passed the impugned order for Assessment Year 2015-16 i.e. after 01.10.2014 therefore the order passed by the ld AO is within 7 years from the end of the Financial year to which the transaction pertained to. Therefore, the order is not time barred. On the issue of tax deduction at source, he rejected the contention of the assessee that the amount was credited in the books of account for various expenses at the year end but were reversed at the beginning of the next Financial Year and actual payment were made much later and at that point of time the tax is duly deducted and deposited by the assessee, hence there is no default. He held that provisions are made under the respective heads of expenditure with specific reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of upto 7 years from the end of the Financial Year and therefore, this order is not barred by limitation. 7. We have carefully considered the rival contentions and perused the orders of the lower authorities. The issue is small and clear that when the order u/s 201 (1) of the act can be passed for AY 2009-10. For that year, the TDS statement is required to be filed for the last quarter on 30/6/2009. It is the statements of the ld AR that assessee has filed such TDS return, therefore the time limit for passing an order u/s 201(3) would be two years from the end of the year in which such TDS statements are filed. In this case, such time limit expires on 31/3/2012. The ld AR has stated that assessee filed such return in FY 2009-10 , this is not denied by the revenue. According to us the identical issue has been considered by the Hon'ble Gujarat High Court in Tata Teleservices Vs. Union of India (2016] 66 taxmann.com 157 (Gujarat)/[2016] 238 Taxman 331 (Gujarat)/[2016] 385 ITR 497 (Gujarat)/[2016] 284 CTR 337 (Gujarat) wherein it has been held that prior to section 201 was amended by Finance Act No. 2 of 2009, no time limit was provided for passing a order u/s 201(1). W.e.f. 01.04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09 were valid and were within time relying upon the amended Section 201(3) of the Finance Act, 2014. 6.4 That the petitioner by reply dated 05/01/2015 reiterated its submissions in respect of the proceeding being time barred. 6.5 That the respondent No. 2 vide letter dated 12/01/2015 gave last opportunity to the petitioner to furnish the factual information as sought by the officer. Hence, the petitioner has preferred the Special Civil Application No. 1623 of 2015. 7. The challenge to the impugned notices /summonses which are issued under section 201 of the Act are mainly on the following grounds :- (i) Section 201 provides for consequences of failure to deduct tax. The said Section 201 was amended by Finance Act, 2008 with retrospective effect from 01/06/2002 wherein the proceedings were to be initiated within reasonable period of time. Subsequently Section 201(3) and Section 201(4) were introduced w.e.f. 01/04/2010 by Finance (No.2) Act, 2009 which provided period of limitation of two years from the end of financial year in which the Statement is filed in a case and four years from the end of financial year where the Statement has not been filed. Therefore in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of S. S. Gadgil v. Lal & Co., AIR 1965 SC 720 (Para 12 and 13) as well as in the case of J.P. Jani, ITO v. Induprasad Devshanker Bhatt [1969] 1 SCR 714 (Paras 4 and 5). 8.2 Mr.Mihir Joshi, learned Senior Advocate appearing on behalf of the petitioner has further submitted that the time period for passing an order had lapsed under Section 201 for the relevant financial year and therefore a vested right had accrued in favour of the petitioner which can only be taken away by an express retrospective amendment. Hence the substantive right is conferred by a statute which remains unaffected by subsequent changes in law unless modified expressly or by necessary implication. It is trite law that every gimme is prospective unless it is expressly or by necessary implication made to have retrospective operation. Limitation provision therefore can be procedural in the context of one set of facts but substantive in the context of different set of facts because right can accrue to both the parties. In such a situation test is to see whether the statute, if applied retrospectively to a particular type of case would impair existing rights and obligations. An accrued right to plead a t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Addl. Commissioner v. Jyoti Traders [1999] 2 SCC 77 would not apply in the present case as the interpretation of the amended Section by the Hon'ble Supreme Court in the case of Jyoti Traders (supra) was in respect of the proviso which provided that 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. To understand it more precisely the relevant provision of Section 21 dealt in the said judgment read as under: 'Section 21. Assessment of tax on the turnover not assessed during the year. (1) If the assessing authority has reason to believe that the whole or any part of the turnover of the dealer, for any assessment year or part thereof has escaped assessment to tax or has been under assessed or has been assessed to tax at a rate lower than that at which it is assessable under this Act, or any deductions or exemptions have been wrongly allowed in respect thereof the assessing authority may, after issuing notice to the dealer and making such inquiry as it may consider necessary, assess or re-assess the dealer or tax according to law : Provided that the tax shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een these two judgments, the judgment of K.M. Sharma case (supra) will prevail over Jyoti Traders case (supra) since it has been delivered by larger bench of Hon'ble Supreme Court. 8.7 Mr.Mihir Joshi, learned Senior Advocate appearing on behalf of the petitioner has submitted that the judgment relied on by the respondent No. 2 in the case of CTO v. Biswanath Jhunjhunwala [1996] 5 SCC 626, for the principles laid down there in would not apply to the present case as the facts in the said judgment are different from the facts of the present case. (a) In the said judgment, assessments were completed on 17/02/1969 and 26/03/1969. Under rule 80(5) of the Bengal Sales Tax Act, 1941 as it then stood, the assessment can be revised if the assessment has been made or the order has been passed more than four years previously. Accordingly the period of four years expired on 26/03/1973. The said sub rule 80(5) was amended by a notification dated 30/03/1974 w.e.f. 01/11/1971 under which the assessment can be revised if the assessment has been made or the order has been passed more than six years previously. Therefore it was with retrospective effect from 01/11/1971 though notification was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t have been used in the amended section must apply as they stand, however unreasonable or unjust the consequences, and however strongly it may suspect that it was not the real intention of the legislature. Therefore the language of the amended Section 201(3) by the Finance Act, 2014 is clear as it does not expressly provides or mentions to commence proceedings in respect of FY or extend the time limit from retrospective effect which had already expired. 8.8 Mr.Mihir Joshi, learned Senior Advocate appearing on behalf of the petitioner has submitted that even decision of the Hon'ble Supreme Court in the case of N.Ranga Rao & Sons v. State of Karnataka [2007] 9 SCC 691 and in the case of Thirumalai Chemicals Ltd. (supra) relied upon by Mr.Bhatt, learned Senior Advocate appearing on behalf of the Income Tax Department contending that the aspect of limitation is a procedural law and same would not apply to the facts of the case as the said judgement do not deal with the aspects where vested right has accrued in favour of the petitioner as it becomes a substantive right once the proceedings are time barred and attained finality and that to when the amended provision is not given re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at any time after the expiry of 7 years from the end of the Financial year in which payment is made or credit is given. It is submitted that, therefore, the Section itself provides for limitation period of 7 years from the end of the financial year in which payment is made or credit is given. It is submitted that in the instant case, period of 7 years has not elapsed from the end of financial year in which payment is made or credit is given. It is submitted that, therefore, the impugned notices / summonses cannot be said to be barred by period of limitation as provided under the Act. 10.3 Mr.M.R. Bhatt, learned counsel appearing on behalf of the revenue has further submitted that earlier provision had bifurcation as contained in clauses (i) and (ii) of sub- section (3) with regard to statement being filed, payment made or credit given. It is submitted that as compared thereto, the legislature has done away with this distinction and the amendment prescribes a common period of limitation so as to align the time limit with the provision of Section 148 of the Act. 10.4 Mr.M.R. Bhatt, learned counsel appearing on behalf of the revenue has heavily relied upon the Memorandum to the F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidering the provisions of Sections 37 of 1922 Act. It is submitted that unamended Section 34(1)(iii) provided for a period of one year in respect of an agent. It is submitted that by the amended clause (iii), a negative covenant was placed putting an embargo on the assessing officer not to issue a notice after an expiry of two years. It is submitted that it is only by reason of this negative proviso that petition came to be allowed by the Court as can be seen from para 3 of the judgment. It is submitted that In the present case, there is no such negative proviso. It is submitted that in fact in the said decision also in para 5, the Hon'ble Supreme Court has observed that "there was no scope for issuing a notice unless the Legislature expressly gave power to the Income Tax officer to issue notice under the amended section notwithstanding the expiry of the period under the unamended provision or unless there was overlapping of the period within which notice could be issued under the old and the amended provision". 10.10 Mr.M.R. Bhatt, learned counsel appearing on behalf of the revenue has further submitted that the decision of the Hon'ble Supreme Court in the case of K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid decisions and as observed hereinabove, as the present petitions involve pure question of law, the objections raised by the revenue against entertainability and/or maintainability of the present petitions against the show cause notices are hereby overrules and the present petitions are considered on merits. 11.02 Short question posed for consideration of these petitions is as to, whether section 201(3) of the Income Tax Act as amended on 1/10/2014 by Finance Act of 2014 would be applicable retrospectively or prospectively and whether the said provision would be applicable with respect to the proceedings under the Income Tax Act for A.Y. 2008-09 and 2009-2010?, the proceedings which had already become time barred in view of the provisions of section 201(3) of the Act prior to amendment in section 201(3) of the Act by Finance Act 2014? 12. While considering the aforesaid question, provisions of section 201 of the Income Tax Act, as amended from time to time, are required to be considered. 12.1 Section 201 of the Act provides for consequences of failure to deduct tax in accordance with the provisions of the Act. Section 201 of the Act as amended by Finance Act of 2008 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 121 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,- (i) at one per cent for every month or part of a month on the amount of such tax from the date on which such tax was deductible to the date on which such tax is deducted; and (ii) at one and one half per cent for every month or part of a month on the amount of such tax from the date on which such tax was deducted to the date on which such tax is actually paid, and such interest shall be paid before furnishing the statement in accordance with the provisions of sub-section (3) of section 200. (2). Where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act has been further amended by Finance Act No.2 of 2014 w.e.f. 1/10/2014, which reads as under : "Consequences of failure to deduct or pay : 201(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 seven years from the end of the financial year in which payment is made or credit is given." As stated hereinabove, question posed before this Court is whether section 201(3) of the Income Tax Act as amended by Finance Act No.2 of 2014 would be applicable prospectively or retrospectively. 12.6 From the aforesaid chronological events and section 201 as amended from time to time, it emerges that prior to section 201 came to be amended by Finance Act No.2 of 2009, Income Tax Act did not provide for any limitation of time for passing an order under section 201(1) holding a person to be an assessee in default. It appears that in absence of such a time limit, dispute arose when the proceedings were taken up or completed after substantial time has elapsed. Therefore, by Finance Act No.2 of 2009 sub-sections (3) and (4) ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1st March, 2011. However, no time-limits have been prescribed for order under subsection (1) of section 201 where- (a) the deductor has deducted but not deposited the tax deducted at source, as this would be a case of defalcation of government dues; (b) the employer has failed to pay the tax wholly or partly, under sub-section (1A) of section 192, as the employee would not have paid tax on such perquisites; (c) the deductee is a non-resident as it may not be administratively possible to recover the tax from the non-resident. It is proposed to make these amendments effective from 1st April, 2010. Accordingly it will apply to such orders passed on or after the 1st April, 2010. From the aforesaid chronological events, it appears that section 201(3)(ii) of the Act came to be further amended by Finance Act of 2012, however, with retrospective effect from 1/4/2010 whereby in sub-section (3) in clause (ii), further words "four years" came to be substituted by words "six years".' Thus, period for passing order in respect of cases where statement referred to in section 200 of the Act were not filed, was extended from four years to six years. 12.9 It is also required to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end section 200 of the Act to allow the deductor to file correction statements. Consequently. it is also proposed to amend provisions of section 200A of the Act for enabling processing of correction statement filed. The existing provisions of section 201(1) of the Act provide for passing of an order deeming a payer as assessee in default if he does not deduct or does not pay or after deduction fails to pay the whole or part of the tax as per the provisions of Chapter XVII-B of the Act. Section 201 (3) of the Act provides for time limit for passing of order under section 201(1) of the Act for deeming a payer as assessee in default for failure to deduct tax from payments made to a resident. Clause 201(3) of the Act provides that no order under section 201(1) of the Act shall be passed after expiry of two years from the end of the financial year in which TDS statement has been filed. Currently. the processing of TDS statement is done in the computerized environment and mainly focuses on the transactions reported in the TDS statement filed 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislature wanted to make provisions applicable retrospectively, it has been so provided. 12.15 At this stage, it is required to be noted that while making amendment in section 201(3) of the Act by Finance Act No.2 of 2014, does not so specifically provide that the said amendment shall be made applicable retrospectively. 12.16 On the other-hand, it is specifically stated that the said amendment will take effect from 1/10/2014. As observed hereinabove, in the present cases, limitations provided for passing order under section 201(1) of the Act for A.Y. 2007-08 and 2008-09 had already been expired on 31/3/2011 and 31/3/2012, respectively, i.e. prior to section 201(3) came to be amended by Finance Act No.2 of 2014. 13. In the backdrop of the above facts, few decisions of the Hon'ble Supreme Court on the point and more particularly, with respect to retrospective applicability of the provisions of the Act are required to be referred to and considered. 13.1 In the case of S.S. Gadgil (supra), the Hon'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 gre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance Act of 1956 having already come to an end, the amending provision will not assist him to commence a proceeding even though at the date when he issued the notice it is within the period provided by that amending Act. This will be so, notwithstanding the fact that there has been no determinable point of time between the expiry of the time provided under the old Act and the commencement of the amending Act. The legislature has given to S. 18 of the Finance Act 1956, only a limited retrospective operation i.e. up to April 1,1956, only. That provision must be read subject to the rule that in the absence of an express provision or clear implication, the 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 by the expiry of the period provided become barred." 13.2 A similar view has been taken by the Hon'ble Supreme Court in the case of J. P. Jani, ITO (supra) 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year ending on the 31st day of March, 1940" occurring in S. 297 (2) (d) (ii) of the new Act, but these general words cannot take in their sweep all assessment years subsequent to the year ending on 31st March, 1940 without regard to the question whether the right to re-open the assessment in respect of any assessment year was or was not barred under the repealed Act. We consider that the language of the new Section must be read as applicable only to those cases where the right of the Income Tax Officer to reopen the assessment was not barred under the repealed Section. In our view the new statute does not disclose in express terms or by necessary implication that there was a revival of the right of the Income Tax Officer to re-open an assessment which was already barred under the old Act. This view is borne 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having already come to an end the amending provision will not assist him to commence a proceeding even though at the date when he issued the notice it is within the period provided by that amending Act. This will be so, notwithstanding the fact that there has been no determinable point of time between the expiry of the time provided under the old Act and the commencement of the amending Act. The legislature has given to Section 18 of the Finance Act 1956, only a limited retrospective operation, i. e. up to April 1, 1956 only. That provision must be read subject to the rule that in the absence of an express provision or clear implication, the 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 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 asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hirumalai Chemicals Ltd. (supra), while discussing the law of limitation, the Hon'ble Supreme Court in paragraph Nos.29 to 33 has observed and held as under : "Law of Limitation 29. Law of limitation is generally regarded as procedural and its object is not to create any right but to prescribe periods within which legal proceedings be instituted for enforcement of rights which exist under substantive law. On expiry of the period of limitation, the right to sue comes to an end and if a particular right of action had become time barred under the earlier statute of limitation the right is not revived by the provision of the latest statute. Statutes of limitation are thus retrospective insofar as they 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 provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective. The manner of filing an appeal, under subsection (2) of Section 19 of FEMA and the time within which such an appeal has to be preferred and the power conferred on the Tribunal to condone delay under the proviso to sub-section (2) of Section 19 are matters of procedure and act retrospectively, so as to cover causes of action which arose under FERA. " 13.5 At this stage, decision of the Judicial Committee of the Privy Council in the case of Yew Bon Tew (supra) is required to be referred to and considered. In the aforesaid decision, Privy Council has observed and held as under : 'A statute of limitations 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te deals with substantive rights, or deals with both procedural and substantive rights, then the prospective Rule of construction is applicable... From the authority laid down in 'The Ydun' I am of the View that the amending Act deals only in procedure. In the absence of any express provision to the contrary, the amending Act should, therefore, apply retrospectively. The learned judge added that, if the Plaintiffs had begun their action before the 1974 Act came into force, the Defendants would have escaped liability, thus taking the view that the Act, though retrospective in relation to a 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive effect cannot in all cases safely be decided by classifying the statute as procedural or substantive. For example, in "The Ydun" case the barque might have grounded on 13 May instead of 13 September 1893 and the Act might have come into force on 5 December 1893 when it received the Royal Assent, instead of 27 days later. Had those been the facts the Act would, if its procedural character were the true criterion of its effect, have deprived the owners of their ability to pursue their cause of action on the day the Act reached the Statute Book. A Limitation Act which had such 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provision in sub-section (1) therefore can have only prospective operation to assessments, which have not become final due to expiry of period of limitation prescribed for assessment under Section 149 of the Act. 21. On a proper construction of the provisions of Section 150(1) and the effect of its operation from 1-4-1989, we are clearly of the opinion that the provisions cannot be given retrospective effect prior to 1-4-1989 for assessments which have already become final due to bar of limitation 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clarificatory amendment of this nature will have retrospective effect (ibid., pages 468-69). 15. Though retrospectivity is not to be presumed and rather there is presumption against retrospectivity, according to Craies (Statute Law, 7th Edn.), it is open for the Legislature to enact laws having retrospective operation. This can be achieved by express enactment or by necessary implication from the language employed. If it is a necessary implication from the language employed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come final due to bar of limitation prior to 1/4/1989, while holding that the said provision cannot be given retrospective effect prior to 1/4/1989 for assessments which have already become final due to bar of limitation prior to 1/4/1989, in paragraph Nos.14 and 21 the Hon'ble Supreme Court has observed and held as under :- "14. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proviso to section 21 which specifically provided that assessment and reassessment may be made after expiration of the period aforesaid but not after the expiration of 8 years and from the end of such year. In the aforesaid proviso it expressly enabled assessment where period expires and it operates upon expiry of limitation period. Therefore, the said decision shall not be applicable considering the wordings used in section 201 as amended by Finance Act, 2014, more particularly when it has been expressly provided and/or made prospective w.e.f. 1/4/2010. 14.1 Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of Biswanath Jhunjhunwala (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. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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