TaxTMI 
TaxTMI 
2018 (4) TMI 136
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....which amendment in fact was not curative but prospective w.e.f 01.04.2013. Whether under the facts and circumstances of the case, the Learned Income Tax Appellate Tribunal failed to appreciate that the judgment of Hon'ble High Court relied upon by it was not of jurisdictional High Court and on the same issue, divergent view was taken y Hon'ble Kerala High Court in the case of Shri Thomas George Muthoot Vs. CIT (Kerala High Court), Income Tax appeal No. 278/2014 dated 03.07.2015 wherein the Hon'ble Kerala High Court had clearly held that the amendment brought in to second proviso to section 40(a)(ia) is prospective and not curative in nature when Finance Act, 2012 did not provide its retrospective application". 4. Learned counsel for Revenue submitted that second proviso to Section 40(a)(ia) is not retrospective and relied on a Division Bench Judgment of Kerala High Court in ITA No. 278 of 2014 decided on 03.07.2015, while learned counsel for respondent has placed reliance on Division Bench judgment of Delhi High Court in Commissioner of Income Tax Vs. Ansal Land Mark Township Private. Ltd 2015 377 ITR 635 (Delhi) and judgment of Supreme Court in Commissioner of Income Tax (Centr....
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....he income is to be taxed is specified every year by the Parliament in the Finance Act. In contradistinction, when it comes to payment of tax on the undisclosed income relating to the block period, rate is specified in Section 113 of the Act. It remains static at 60% of the undisclosed income which is the categorical stipulation in the Section 113 of the Act. Section 158BA(2) of the Act clearly states that the total undisclosed income relating to the block period "shall be charged to tax" at the rates specified Under Section 113 as income of the block period irrespective of previous year or years. Under Section 113 of the Act, the undisclosed income is chargeable to tax at the rate of 60%. 24. From the above, it becomes manifest that Chapter XIVB comprehensively takes care of all the aspects relating to the block assessment relating to undisclosed income, which includes Section 156BA(2) as the charging section and even the rate at which such income is to be taxed is mentioned in Section 113 of the Act. No doubt, Section 4 of the Act is also a charging section which is made applicable on 'total income of previous year'. As per Section 2(45), 'total income' means the....
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....s the undisclosed income, notwithstanding a provision in the nature of Section 4 already on the statute book, this move of the legislature has to be assigned some reason, otherwise, there was no necessity to make a provision in the form of Section 158BA(2). It could only be that for assessing undisclosed income, charging provision is Section 158BA(2) alone. 26. Notwithstanding the aforesaid position clarified with us, we are of the opinion that dehors this discussion, in any case on the application of general principles concerning retrospectivity, the proviso to Section 113 of the Act cannot be treated as clarificatory in nature, thereby having retrospective effect. To make it clear, we need to understand the general principles concerning retrospectivity. General principles concerning retrospectivity 27. A legislation, be it a statutory Act or a statutory Rule or a statutory Notification, may physically consists of words printed on papers. However, conceptually it is a great deal more than an ordinary prose. There is a special peculiarity in the mode of verbal communication by a legislation. A legislation is not just a series of statements, such as one finds in a work of fict....
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....e aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later. 30. We would also like to point out, for the sake of completeness, that where a benefit is conferred by a legislation, the rule against a retrospective construction is different. If a legislation confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on the public generally, and where to confer such benefit appears to have been the legislators object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. This exactly is the justification to treat procedural provisions as retrospective. In Government of India and Ors. v. Indian Tobacco Association (2005) 7 SCC 396, the doctrine of fairness was held to be relevant factor to construe a statute conferring a benefit, in the context of it to be given a retrospective operation. The same doctrine of fairness, to hold that a statute was retrospective in nature, was applied in the ....