TaxTMI 
TaxTMI 
1996 (8) TMI 511
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.... Tax Rules, 1941, the assessments could have been re-opened only within a period of 4 years for the relevant part of sub-rule [5] read thus: "[5] The Commissioner or any other authority to whom power in this behalf has ben delegated by the Commissioner, shall not, of his own motion, revise any assessment made or order passed under the Act or the rules thereunder if- XXX XXX XXX [ii] the assessment has been made or the order has been passed more four years previously." The Bengal Sales Tax Ordinance, 1973, substituted sub- section [1] of Section 26 of the Act. As substituted, sub- section [1] of Section 26 read thus: "26[1] The State Government may make rules, with prospective or retrospective effect, for carrying out the purposes of this Act." The Ordinance was replaced by the Bengal Finance [Sales Tax] [Third Amendment] Act, 1974. Pursuant to the amendment of Section 26[1] of the Act, a Government Notification was issued on 30th March, 1974, amending, "with effect from the 1st November, 1971", clause [ii] of sub-rule [5] of Rule 80. Subsequent to such amendment, the relevant part of sub-rule [5] read thus: "The Commissioner or any other authority to whom po....
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....ears would operate. The notices had been issued within such period and were valid. The decisions of this Court in cases of S.S.Gadgil and J.P. Jani [ibid] were distinguishable in that no provision expressly indicating when the retrospectively amended period should start had been made. Mr. H.N. Salve, learned counsel for the respondents, laid stress on the fact that even at the time when the amendment of Section 26[1] was made, the assessing officer had lost the power to re-open the assessments in question He submitted that the words "with effect from 1st November, 1972" in the said Notification should be read as meaning that the amended provision would be applicable to assessments made after 1st November, 1971. So read, no assessments that had achieved finality would be affected. Re-opening was a matter of power, and of substantive law where assessments had reached finality. An intention should clearly be evinced in the amendments to confer the power to destroy such finality. Such intention was not evinced in the present case. Our attention was drawn to the judgment in The Income Tax Officer, Madras vs. S.K. Habibullah, Madras, 1962 Supp. [2] S.C.R. 716. In the case of S.S. G....
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.... levy of the tax. They do not create an exemption in favour of the assesse or grant an absolution on the expiry of the period. The liability is not enforceable but the tax may again become exigible if the bar is removed and the taxpayer is brought within the jurisdiction of the said machinery by reason of a new power. This is, of course, subject to the condition that the law must say that such is the jurisdiction, either expressly or by clear implication. If the language of the law has that clear meaning, it must be given that effect and where the language expressly so declares or clearly implies it, the retrospective operation is not controlled by the commencement clause." The court said that the Legislature had given to Section 18 of the Finance Act, 1956, only a limited retrospective operation, i.e., upto 1st April, 1956. That provision had to be read subject to the rule, that in the absence of an express provision or clear implication, the Legislature did not intend to attribute to the amending provision a greater retrospectivity than was expressed mentioned nor to authorise the Income-tax Officer to commence proceedings which, before the new Act came into force, had, by exp....
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....ed a fiction making the inclusion of the share in the assessment or correction thereof such a mistake. If the inclusion of the share of correction of the assessment were an error apparent from the record and failing under clause (1) of Section 35, the enactment of clause (5) was unnecessary. The Legislature having deliberately enacted a fiction of the nature set out in clause (5), the court rejected the contention raised by counsel for the Revenue that the enactment of the fiction was ex-abundanti cautela. Rectification of the nature contemplated by clause (5) could not have been effected under clause (1) . The legislature declared that what was not a mistake should for the purpose of rectification of assessment be regarded as a mistake apparent from the record and provided a terminus for the computation of period of four years. The question which fell to be considered was whether, relying upon clause (5) pf Section 35, an Income tax Officer could rectify the assessment of a person a who was a partner in a firm when the assessment of the firm was completed before 1st April, 1952. The legislature had given to clause (5) a partial retrospective operation. The provision enacted by cla....