TaxTMI 
TaxTMI 
2011 (12) TMI 463
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....February 15, 1977, the appeal of the assessee filed before the Appellate Assistant Commissioner was allowed on April 27, 1977. 2. Admittedly, at the relevant point of time, there was no further right of appeal available to the Revenue against the order of the Appellate Assistant Commissioner. In fact, the Appellant Assistant Commissioner while passing the orders in the appeal in favour of the assessee has relied upon the judgment of this court dated March 3, 1976 in Sri Srinivasa Sales Circulation v. State of Tamil Nadu reported in [1976] 38 STC 359 (Mad). As against the said judgment of the Madras High Court dated March 3, 1976, an appeal has been filed to the Supreme Court in the year 1977 and ultimately, the honourable apex court has allowed the appeal filed by the Government by judgment dated October 4, 1996 in State of Tamil Nadu v. Sri Srinivasa Sales Circulation reported in [1996] 103 STC 485 (SC), holding against the assessee. 3. In the meantime, as per the original section 34(2) of the Tamil Nadu General Sales Tax Act, the period of limitation to pass orders expired on April 27, 1982, in respect of both the assessment years. In the meanwhile, an amendment Act 22 of 1....
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.... the proviso, which has been effected by way of amended Act 22 of 1982. 6. The said contention has been retaliated by the learned counsel for the petitioner on the ground that inasmuch as the period for passing orders as per section 34 of the Act, expires on April 27, 1982 itself, any amendment which has come into effect only subsequently, i.e., November 1, 1982, cannot have any applicability to the facts. According to the learned counsel, the proviso can be made applicable retrospectively only in pending cases and in cases where the tax effect has come to an end, and there is no question of applying the said proviso for those cases. 7. We have heard the learned counsel for the petitioner and the learned Special Government Pleader and we have given our anxious thought to the issues involved in these cases. 8. On the abovesaid admitted facts, it is relevant to find out the position of section 34 of the Act, before and after the amendment. The relevant section, which has to be considered in these writ petitions, is section 34 of the Tamil Nadu General Sales Tax Act, which reads as follows: "34. Special powers of Board of Revenue.-(1) The Board of Revenue may, of his own m....
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.... any such order or proceeding referred to in subsection (1) if,- (a) the time for appeal against that order has not expired; or (b) the order has been made the subject of an appeal to the Appellate Tribunal or of a revision in the (Special Appellate Tribunal) or (c) more than five years have expired after the passing of the order: Provided that if the order passed or proceeding recorded by the appropriate authority, Appellate Assistant Commissioner or Deputy Commissioner referred to in sub-section (1) involves an issue on which the High Court has given its decision adverse to the revenue in any other proceedings, and an appeal to the Supreme Court against the order of the High Court is pending, the period of time between the date of the abovesaid order of the High Court and the date of the order of the Supreme Court shall be excluded in computing the period referred to in clause (c). (3) No order under this section adversely affecting a person shall be passed unless that person has had a reasonable opportunity of being heard. (4) In computing the period referred to in clause (c) of sub-section (2), the time during which the proceedings before (the Joint Commission....
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....ceedings were initiated under the un-amended section 34 of the Act and the final order has also been passed by the Appellate Assistant Commissioner on April 27, 1977 itself. Though under section 34(2) of the Act the limitation for passing any further orders has been made as five years, as it has been elicited above, while applying that, the expiry of five years period, as per unamended section 34, is admittedly on April 27, 1982. While so, the amendment of section 34(2), which has come into effect from November 1, 2000, can never be made applicable to the case of the petitioner. The effect of the proviso in which event would be that the saving of the period from the date of judgment of the High Court till the date of judgment by the Supreme Court, i.e., from March 3, 1971 to October 4, 1996, would apply only in cases where assessment has not been completed. The assessment process if completed, there is no purpose in contending that the proviso would still be made applicable so as to reopen the case. This concept has been well established in the legal parlour, as seen from the earlier judgment in Ramanathan Chettiar v. Kandappa Gounder reported in [1950] 2 MLJ 624, wherein the honou....
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.... infra). In that case a similar amendment had been made to section 18 of the Wealth Tax Act by the Finance Act of 1969. In accordance with the provisions in force at the time when the assessment was completed, the order levying penalty could have been passed only by April 26, 1972. The penalty order was, however, made after the said date. There was an amendment of the law before the expiry of the period of limitation and, therefore, taking that fact into account it was pointed out (see page 699 infra) 'it is now well-settled, that if before the limitation period expired, the period of limitation is extended, the limitation provision, being a procedural one, the extended period of limitation would apply to such proceedings . . .' Applying the principles laid down by the Supreme Court, we may state that the period prescribed in the unamended section 275 cannot be described as statutes of repose. The idea was to see that penalty was levied without any undue delay in the case of persons who had committed defaults in making returns or payments envisaged by the law. While there was a fixed rigid time-limit under the original provision, the time-limit was altered under the amen....
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....e. We, therefore, think that the claims against the directors, which were, prima facie, made within time, were not shown to have been barred by limitation." 17. In fact, the honourable apex court has referred to a large number of English as well as Indian Cases, thereby to add such conclusion to hold that the said legal stand is well-settled. 18. In a recent judgment in K. M. Sharma v. Income-tax Officer reported in [2002] 254 ITR 772 (SC), the Supreme Court has held that in a fiscal statute, the provision relating to limitation has to be considered strictly, by reiterating that, any subsequent amendment cannot be made applicable to a case which has already been disposed, unless the same is pending consideration. Further, it has held as follows (pages 779 and 780 in 254 ITR): "On a proper construction of the provisions of section 150(1) and the effect of its operation from April 1, 1989, we are clearly of the opinion that the provisions cannot be given retrospective effect prior to April 1, 1989, for assessments which have already become final due to the bar of limitation prior to April 1, 1989. The taxing provision imposing a liability is governed by the normal presumptio....