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TMI Blog1983 (2) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... 960. On February 15, 1962, a notice under s. 59 of the Act was issued to the accountable person by the Asst. Controller saying that he had reason to believe that property chargeable to estate duty had been under-assessed. An objection was filed by Sri Barkat to the effect that assessment proceedings had become final under the unamended Act and could not be reopened. On March 9, 1966, the Asst. Controller issued a notice fixing March II, 1966, for hearing in the reassessment proceedings after rejecting the objection. At this, Sri Barkat filed Writ Petition No. 1585 of 1966 in this court challenging the initiation of reassessment proceedings. This writ petition was, however, dismissed by a learned single judge whose decision was affirmed by a Division Bench on May 6, 1970, in Special Appeal No. 114 of 1967. The view taken by the Special Appeal Bench was that the notice of February 15, 1963, had been issued well within the period of three years prescribed under s. 73A of the amended Act as it had been issued within that period from the date of the initial order for assessment dated February 29, 1960. It also held that there was some material in the possession of the Dy. Controller w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the account or of omission to include therein any property which ought to have been included, or of, assessment at too low rate or otherwise, he may at any time, subject to the provisions of section 73A, require the person accountable to submit an account ........... Section 73A which provides for limitation reads, in its material part, as under : I " 73A. No proceedings for the levy of any estate duty under this Act shall be commenced (a) in the case of a first assessment ......... (b) in the case of a reassessment, after the expiration of three years from the date of assessment of such property to estate duty under this Act." The submission of the counsel for Controller in this court has been two-fold: firstly, that the question about the competence of the Asst. Controller to commence the reassessment proceedings u s. 59 of the amended Act stood concluded between the parties by the decision of this court in special appeal and could not be re-examined by the Tribunal and, secondly, that the view that proceedings which had become final under the unamended Act before July 1, 1960, could not be reopened u/s. 59, which was brought on the statute book with effect from July ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 67] 63 ITR 458 (SC), CIT Krishna and Sons [1968] 70 ITR 733 (SC), Agha Abdul Jabbar Khan v. CIT [1971] 82 ITR 872 (SC) and CIT v. Dhanrajgirji Raja Narasingirji [1973] 91 ITR 544 (SC). The proposition is well settled and need not detain us. Now, about the question regarding which our opinion has been sought. The jurisdiction to assess property which had escaped assessment to duty is substantive in nature, for, but for ail enabling provision in that regard, the Asst. Controller could not exercise it. Section 59 was brought oil the statute book with effect from July 1, 1960, in the first instance. There is no dispute about it. Properly, therefore, it could be resorted to only after that date, as has been done in the instant case. The question is whether the provision could be invoked in respect of assessments which had become final prior to july 1, 1960. It is here that the parties have joined issue. Counsel for the Controller has put his case thus: The provision could be invoked in respect of assessments which had been completed within three years of the date on which the jurisdiction was exercised after July 1, 1960, for that was the period prescribed u/s. 73A. Says the couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1953] 23 ITR 471 (ITO v. Calcutta Discount Co.). The company took the matter in further appeal to the Supreme Court. The only question raised was about the notices being invalid on the ground of absence of the necessary condition precedent. The applicability of the amended provision was not assailed as is clear from the decision in Calcutta Discount Co. v. ITO [1961] 41 ITR 191 (SC). We may notice that the power to make reassessment was contained in s. 34 even prior to its amendment by the Amending Act of the year 1948. Some changes were made by the Amending Act, including, in regard to the period for which assessments could be reopened for the purpose. The larger Bench of the Calcutta High Court was not dealing with a case where the power of reassessment was conferred upon the ITO for the first time in the year 1948. In Prashar's case [1963] 49 ITR 1 (SC), the question was about reassessment of income pertaining to assessment year 1942-43. The final order, in this case, had been made by the High Court on October 8, 1953. By that date the period for commencing reassessment proceedings prescribed by s. 34, as amended in the year 1948, had expired. Reassessment proceedings were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. The assessee approached the Gujarat High Court under art. 226 of the Constitution for relief which quashed the proceedings on its view that the right of the ITO to reopen the assessment of the assessee was admittedly barred u/s. 34 of the 1922 Act at the commencement of the 1961 Act so that it was not open to the ITO to reopen the assessment under the 1961 Act. The Supreme Court upheld the view taken by the Gujarat High Court. It reiterated the 'view taken by it' earlier in S. S. Gadgil v. Lal and Co. [1964] 53 ITR 231 (SC), wherein it was held that unless there was a clear provision to that effect or necessary implication was discernible in the provisions made, reassessment proceedings could not be undertaken in respect whereof the right had become barred under the unamended provision when the amended provision took effect. In the instant case, there is no express provision enabling reassessment in cases where the proceedings had become final prior to July 1, 1960, nor is there an intendment unmistakably pointing to that effect in any provision of the Act as amended by the E.D. (Amend.) Act, 1958. The jurisdiction to make reassessment was conferred, in the first instance, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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