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2021 (3) TMI 839
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.... in the present case is the assessment period from April 2006 to March 2007. The facts of the case further reveal that in pursuance of the assignment note dated 28.02.2012 issued by the Commissioner of Commercial Taxes (Karnataka, Bengaluru), taking into account Section 40 of the said Act of 2003, a final order was passed on 25.01.2014. The order was subjected to an appeal and the first appellate authority has dismissed the appeal by order dated 31.12.2015, against which an appeal in STA NO.352/2016 was preferred before the Karnataka Appellate Tribunal (hereinafter referred to as 'KAT' for short) and the KAT has allowed the appeal preferred by the assessee on the point of limitation alone. The relevant statutory provision governing in respect of limitation finds place under Section 40 of the said Act of 2003 and the same reads as under: "40. Period of limitation for assessment.- (1) An assessment under Section 38 or re-assessment under Section 39 of an amount of tax due for any prescribed tax period shall not be made after the following time limits.- (a) five years after the end of the prescribed tax period; or (b) three years after evidence of facts, sufficient i....
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....ay of March, 2007 shall be made within a period of Eight years after the end of the prescribed tax period". 15. In the argument learned Advocate appearing for the appellant submitted that the re-assessment order passed by the Prescribed Authority for the assessment period of 2006-07 on the basis of the amendment of the proviso made by Act 54/2013 is barred by limitation by relying on the following judgments: 72 ITR 595 (Supreme Court) J.P. Jani Vs/ Indu Prasad Bhat "In our opinion, the principle of this decision applies to the present case and it must be held that, on a proper construction of section 297(2)(d) (ii) of the new Act, the Income- Tax Officer cannot issue a notice under section 148 to reopen the assessment was barred under the old Act at the date when the new Act came into force. It follows, therefore, that the notices dated November 2013, 1963 and January 9, 1964 issued by the Income - Tax Officer, Ahmadabad, were illegal and ultra vires and were rightly quashed by the Gujarat High Court by the grant of a writ". 2002(4) SCC 399 K.M. Sharma Vs. Income Tax Officer "14. Fiscal statute, more particularly, on a provision such as the present ....
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....g House Vs. Assistant Commissioner of Commercial Taxes "4. So long there is a possibility of re-opening any assessment for any reason and no immunity has accrued to the assessee, the existing period of limitation may be enlarged by legislation. But once there is immunity, unless the Legislature amends the law retrospectively or declares any provision as applicable to the concluded proceedings also by clear and specific words, it is not possible to read into those provisions a power enabling the assessing authorities to undo what has become final. 5. In the instant case, 21st October, 1984, immunity accrued to the petitioner against any re-opening of the assessment. When Act 27 of 1985 was introduced there was nothing pending. The assessment against the petitioner had become absolutely final without any possibility of its being reopened. In these circumstances, this Act 27 of 1985 cannot be construed as enabling the Assessing Authorities to initiate fresh action under section 12-A even though the period of limitation was enlarged to 10 years. The said period of 10 years will have to be understood as applicable to cases which have not become final and where....
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....which there is no basis in principle. The power to enact laws retrospectively would include the power to enact laws for a fixed past period as well as especially when it is done for validating the laws which were declared to be invalid by a judgment of the court by bringing the laws in conformity with the law so pronounced". 20. As referred above prior to 01-04-2012 the date on which day Act No.17/2012 through which period of limitation for either assessment or re-assessment of the tax for the assessment period 2006-07 extended from 5 years to 8 years by substituting proviso to Section 40(1) of the KVAT Act came in to effect the limitation to re-assess the tax for the period 2006-07 had come to an end. The substitution by amendment Act 17/2012 or 54/2013 will not extend the period of limitation. Regarding limitation point of law laid down by the Hon'ble Apex Court in the judgments cited on behalf of the Appellant are applicable. 21. Prescribed Authority and First Appellate Authority without properly appreciating facts, circumstances of the case period of the assessment, date of the commencement of the amended Act (Act 17/2012 & 54/2013) formed opinion that the imp....
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....y in accordance with law. (3) In the event of such appeals being filed in accordance with the provisions of the Act within eight weeks from today, appellate authority is directed not to insist for application for condonation of delay being filed. (4) No order as to costs. Ordered accordingly." 8. This Court in the aforesaid case 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. This Court in W.P. No.51802/2014 has taken into account the judgment delivered by the Hon'ble Supreme Court in ADDITIONAL COMMISSIONER (LEGAL) AND ANOTHER VS. JYOTI TRADERS reported in (1992)2 SCC 77, which reads as under: "25. The two decisions in the cases of The Ahmedbad Manufacturing & Calico Printing Co. Ltd. and Biswanath Jhunjhunwalla & Anr. are more closer to the issue involved in the present case before us. They laid down that it is the language of the provision that matters and when meaning is clear, it has to be given full effect. In both these cases, this Court held that the proviso which amend....
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.... assessee in not a condition precedent to reopen the assessment. It is not disputed that a fiscal statute can have retrospective operation. If we accept the interpretation given by the respondents, the proviso added to sub section (2) of Section 21 of the Act becomes redundant. Commencement of Act can be different than the operation of the Act though sometime, both may be the same. The proviso now added to sub-section (2) of Section 21 of the Act does not put any embargo on the Commissioner of Sales Tax not to reopen the assessment if period, as prescribed earlier, had expired before the proviso came into operation. One has to see the language of the provision. If it is clear, it has to be given its full effect. To reassure oneself, one may go into the intention of the legislature in enacting such provision. The date of commencement of the proviso to Section 21(2) of the Act does not control its retrospective operation. Earlier the assessment/ reassessment could have been completed within four years of that particular assessment year and now by the amendment adding proviso to Section 21(2) of the Act it is eight years. The only safeguard being that it is after satisfaction....