9911796707
TMI Blog2021 (3) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... HERS [ 2015 (8) TMI 1389 - KARNATAKA HIGH COURT ] has taken a view that the amendment granting limitation to the Assessing Officer to initiate reassessment proceedings treating the period of limitation to be within eight years and that too with retrospective effect. Thus, it can be inferred that the amendment in Section 40 by virtue of the Amendment Act, is with retrospective effect and the KAT could not have set aside the order passed by the Assessing Officer and the First Appellate Authority by treating the assessment as barred by the period of limitation. The impugned order passed by the Karnataka Appellate Tribunal, Bengaluru is set aside - The matter is remanded back to the Assessing Officer to pass the order afresh in accordance with law. The parties will appear before the assessing officer on 1.3.2021 - petition allowed by way of remand. - HON BLE MR. JUSTICE SATISH CHANDRA SHARMA AND HON BLE MR. JUSTICE V. SRISHANANDA PETITIONERS (BY SRI.VIKRAM HUILGOL, AGA) RESPONDENT (BY SRI. R.V. PRASAD, SR. ADVOCATE FOR SRI. K. HEMAKUMAR, ADVOCATE) ORDER SATISH CHANDRA SHARMA. J., The present petition has been filed by the State Government through its functionaries being aggrieved by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Earlier, the limitation provided for treating the assessment was up to four years, later it was extended to five years, and finally by amendment dated 1.8.2013, it was extended up to eight years that too with retrospective effect. The aforesaid fact is not in dispute. The KAT has allowed the appeal of the assessee by holding that the amendment was not with retrospective effect. 4. The relevant paragraphs of the order passed by the KAT in paragraphs 12 to 25 read as under: 12. Proviso inserted to Section 40(1) of the Act through Karnataka Value Added Tax (Amendment Act 12/2011) reads as under: Provided that an assessment or re assessment relating to any tax period ending 31st day of March, 2007 shall be made within a period of five years after the end of the prescribed tax period . 13. Sub-section (1) of Section 40 of the Act, stood substituted by Karnataka Act N.17 of 2012, with effect from 01.04.2012 and pursuant to its substitution, the First Proviso appended to Section 40(1) of the Act read as under: Provided that an assessment or re assessment relating to any tax period upto the period ending 31st day of March, 2007 shall be made within a period of Eight years after the end o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of orders passed in the proceedings under the lIT Act but also on order of a Court in any proceedings under any law has to be applied prospectively on or after 1.04.1989 when the said amendment was introduced to sub-section (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 limitation prescribed by assessment under Section 149 of the Act . 2007 (9) SCC 109 Dharappa Vs. Bijapura co-operative Milk producers Societies Union Ltd. 28. The legislative intent should be ascertained by keeping in view the position before the amendment, the nature of remedy provided, and the need therefore. It is also necessary to keep in view the general principles relating to limitation. Statutes relating to limitation are said to be retrospective in nature in the sense that they apply to all proceedings brought after they came into force, even for enforcing causes of action which had accrued prior to the date when such statute came into force. But they are also prospective in the sense that they do not have the effect of reviving a right of action which was already barred on the date of its co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006 onwards it is self-explanatory. Hence the proceedings are well within the provisions of Section 40(1) by the KVAT Act 2003 . 18. In Page No.15 and 16 of the impugned appeal under the r-1 though considered the proviso of Section 40(1) of the KVAT Act stood as on 31-03-2012 prescribing period of limitation as 5 years for either assessment or re-assessment pertaining to tax period ending as on 31-03-2007 on the basis of amendment of the proviso by Act No.17 of 2012 with effect from 01-04-2012 extending the period of limitation from 5 years to 8 years by relying on a judgment of Hon ble High Court of Karnataka reported in 123 STC 189 formed an opinion that the impugned re-assessment is not barred by limitation. 19. In the judgment reported in 123 STC 189 M/s. Ballery Steels and Alloys Ltd. Vs. State of Karnataka, Hon ble High Court of Karnataka pleased to held: Scope of retrospective legislation:- The Legislature had empowered the State Government to impose tax by issuing a notification either prospectively or retrospectively. If the Legislature is empowered to law with retrospective effect it is appropriate to make the law effective for such anterior period as it thinks appropri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Topping, applicability of clarification Notification dated 27-05-2010, effect of defence of dropping of the re assessment proceedings on 22-03-2010, will not survive. 5. Sri Vikram Huilgol, learned counsel for the petitioner-State, has argued before this Court that the constitutional validity of the amendment in question was subjected to judicial scrutiny and this Court in W.P. No.51802/2014 decided on 12.8.2015 (M/s. Ciftech Solutions Pvt. Ltd. Vs. State of Karnataka and others) has upheld the constitutional validity of the amendment, by which eight years being the limitation period was prescribed and it was also held that the amendment would be with retrospective effect and the reassessment order was within limitation. He has further stated that the order passed by the KAT be set aside. 6. Heard the learned counsel for the parties at length. 7. This Court is of the considered opinion that on the point on limitation on account of the judgment of this Court in W.P. No.51802/2014, as no appeal has been preferred, the judgment has become final and the operative paragraph of the aforesaid judgment reads as under: ORDER (1) Writ petitions are hereby dismissed. (2) This order of dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orizes the assessing authority to make assessment or reassessment before the expiration of 8 years from the end of such year notwithstanding that such assessment or reassessment may involve a change of opinion. The proviso came into force w.e.f. 19-2-1991. We do not think that sub-section (2) and the proviso added to it leave anyone in doubt that as on the date when the proviso came into force, the Commissioner of Sales Tax could authorise making of assessment or reassessment before the expiration of 8 years from the end of that particular assessment year. It is immaterial if a period for assessment or reassessment under sub-section (2) of Section 21 before the addition of the said proviso had expired. Here, it is the completion of assessment or reassessment under Section 21 which is to be done before the expiration of 8 years of that particular assessment year. Read as it is, these provisions would mean that the assessment for the year 1985-86 could be reopened up to 31-3-1994. Authorisation by the Commissioner of Sales Tax and completion of assessment or reassessment under sub-section (1) of Section 21 have to be completed within 8 years of the particular assessment year. Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention is that the aforesaid cases before the Tribunal were in respect of the assessment years 2007-08 and 2008-09. He has stated that identical appeals were pending before the KAT involving the identical facts and the issues and the KAT in the aforesaid cases has treated the reassessment to be within limitation. However, on merits, it has remanded back the matter to the Assessing Authority and all issues are left open. 11. Sri Vikram Huilgol, learned Counsel for the State was fair enough to state before this Court that in spite of remanding matter to the KAT, the matter may be remanded to the Assessing Officer to decide it afresh in accordance with law by treating the matter to be within limitation. 12. Resultantly, the writ petition filed by the State Government is allowed. The impugned order dated 13.11.2017 passed by the Karnataka Appellate Tribunal, Bengaluru in case S.T.A. No.352/2016 is set aside. The matter is remanded back to the Assessing Officer to pass the order afresh in accordance with law. The parties will appear before the assessing officer on 1.3.2021. No costs. The parties are at liberty to canvass all the possible grounds before the Assessing Officer and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
