TaxTMI 
TaxTMI 
2021 (10) TMI 697
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....ngly, the order dated 30.09.2021 as corrected reads as below: "Heard Sri Rakesh Ranjan Agarwal, learned Senior Advocate, assisted by Sri Suyash Agarwal, Sri Shambhu Chopra, learned Senior Advocate, assisted by Ms. Mahima Jaiswal, Sri Abhinav Mehrotra, Sri Akhilesh Kumar along with Sri Ashish Bansal, Sri Divyanshu Agarwal along with Sri Ankit Saran, Sri Deepak Kapoor along with Sri Shubham Agarwal, Sri V.K. Sabarwal and Shri R.B. Gupta along with Sri Rishi Raj Kapoor, Sri Shakeel Ahmad, Sri Parv Agarwal, Sri Salil Kapoor along with Sri Anuj Srivastava & Ms Soumya Singh alongwith Sri Satya Vrat Mehrotra, Sri Ankur Agarwal, Sri Krishna Deo Vyas, Sri Ashok Shankar Bhatnagar & Sri Harshul Bhatnagar, Sri Pranchal Agarwal, Sri V.K. Sabharwal, Sri R.B. Gupta, Ms. Shalini Goel and Ms. Rupal Agarwal, learned counsel for the petitioners; Sri Shashi Prakash Singh, learned Additional Solicitor General of India assisted by Sri Gopal Verma, Sri Dinesh Kumar Mishra, Sri Gaya Prasad Singh, Sri Sudarshan Singh, Sri Santosh Kumar Singh Paliwal, Sri Ajai Singh, Sri Gaurav Kumar Chand and Sri Krishna Agarwal, learned counsel appearing for the Union of India; Sri Gaurav Mahajan, Sri Praveen Kumar, Sr....
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....AHMED ZAHIR AHMED SHAIKH 2015-16 29.06.2021 20.07.2015 8. 561-2021 M/S JUBILANT PHARMOVA LIMITED 2015-16 30.06.2021 29.11.2015 9. 562-2021 SHOBHIT SHUKLA 2013-14 30.06.2021 -- 10. 564-2021 VARDHMAN INDUSTRIES 2015-16 16.04.2021 25.09.2015 11. 565-2021 YOGESH JAISWAL 2017-18 25.05.2021 29.10.2017 12. 567-2021 NEERAJ PRAKASH 2013-14 30.06.2021 31.12.2015 13. 573-2021 PARVEEN QURESHI 2016-17 30.06.2021 15.06.2017 14. 592-2021 SARLA JAIN 2013-14 26.04.2021 31.03.2014 15. 612-2021 J.M. HOUSING LIMITED 2016-17 30.06.2021 15.10.2016 16. 613-2021 J.M. HOUSING LIMITED 2017-18 30.06.2021 27.01.2018 17. 614-2021 GSR MOVIES 2013-14 28.06.2021 28.09.2013 18. 615-2021 PAWANPUTRA HOTELS AND RESORTS PVT. LTD. 2013-14 30.06.2021 27.09.2013 19. 623/2021 HIRA LAL JAIN 2013-14 27.04.2021 29.07.2013 20. 624-2021 DEVOY BENARA 2013-14 27.04.2021 -- 21. 625-2021 JAI JAGDAMBA METALLOYS LIMITED 2017-18 14.04.2021 31.10.2017 22. 636-2021 STAR ....
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.... 29.06.2021 30.03.2018 53. 746-2021 BALA AGARWAL 2014-15 30.06.2021 23.08.2014 54. 749-2021 SHREE JEE ASSOCIATES 2013-14 23.04.2021 31.03.2014 55. 757-2021 JIVAN KUMAR AGARWAL 2013-14 27.04.2021 21.10.2013 56. 763-2021 KAPIL SHARMA 2013-14 25.06.2021 18.07.2013 57. 764-2021 KAPIL SHARMA 2014-15 25.06.2021 03.02.2015 58. 765-2021 NEERU GUPTA 2013-14 06.04.2021 27.09.2013 59. 769-2021 NEERU GUPTA 2015-16 01.04.2021 27.03.2016 60. 775-2021 MUKESH PAL SINGH 2014-15 30.06.2021 14.03.2015 61. 776-2021 SHIV SHAKTI CONSTRUCTIONS 2013-14 30.06.2021 21.10.2013 62. 777-2021 MUKESH KUMAR 2013-14 30.06.2021 01.02.2014 63. 778-2021 EXOTIC BUILDMART PVT. LTD 2014-15 30.06.2021 25.03.2015 64. 779-2021 KIRTI SINGH 2014-15 30.06.2021 14.03.2015 65. 780-2021 SUSHIL JOSHI 2013-14 30.06.2021 31.03.2014 66. 781-2021 SHIV SHAKTI CONSTRUCTIONS 2014-15 30.06.2021 29.11.2014 67. 782-2021 MUKESH KUMAR 2014-15 30.06.2021 14.03.2015 68. ....
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....d, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notices. The Assessing Officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the Assessing Officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the Assessing Officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the abovesaid five assessment years." 8. Around March, 2020, the pandemic COVID-19 reached our shores and spread all over country. It led to enforcement of a lockdown. Even thereafter, life is yet to normalise. The pandemic severely impacted the normal functioning of the Government as also all other institutions and it obstructed the normal life of the citizens as well. In such facts, judicial intervention had been made by the Supreme Court as also by this Court, to relax the rules of limitation - to institute various proceedings. The Central Government also recognized that difficulty and p....
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....ds and expressions used herein and not defined, but defined in the specified Act, the Central Excise Act, 1944 (1 of 1944), the Customs Act, 1962 (52 of 1962), the Customs Tariff Act, 1975 (51 of 1975) or the Finance Act, 1994 (32 of 1994), as the case may be, shall have the meaning respectively assigned to them in that Act. CHAPTER II RELAXATION OF CERTAIN PROVISIONS OF SPECIFIED ACT Relaxation of certain provision of specified Act. 3. (1) Where, 'any time-limit' has been specified in, or prescribed or notified under, the specified Act which falls during the period from the 20th day of March, 2020 to the 29th day of June, 2020, or such other date after the 29th day of June, 2020, as the Central Government may, by notification, specify in this behalf, for the completion or compliance of such action as- (a) completion of any proceeding or passing of any order or 'issuance of any notice', intimation, notification, sanction or approval or such other action, by whatever name called, by any authority, commission or tribunal, by whatever name called, under the provisions of the specified Act; or b) filing of any appeal, reply or a....
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.... specify in this behalf, then, notwithstanding anything contained in the specified Act, - (a) the rate of interest payable, if any, in respect of such amount for the period of delay shall not exceed three-fourth per cent for every month or part thereof; (b) no penalty shall be levied and no prosecution shall be sanctioned in respect of such amount for the period of delay. Explanation.- For the purposes of this sub-section, "the period of delay" means the period between the due date and the date on which the amount has been paid." Further, in view of the submissions as have been received, it would be fruitful to also quote the provisions of Chapter III of the Ordinance - containing the amendments made to the Act. It reads: "CHAPTER III AMENDMENT TO THE INCOME-TAX ACT, 1961 Amendment of sections 10 and 80G of Act 43 of 1961 4. In the Income-tax Act, 1961, with effect from the 1st day of April, 2020 (43 of 1961), - (i) in section 10, in clause (23C), in sub-clause (i), after the word "Fund", the words and brackets "or the Prime Minister's Citizen Assistance and Relief in Emergency Situations Fund (PM CARES FUND)" shall....
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.... (vii) Chapter VIII of the Finance Act, 2016; or (viii) the Direct Tax Vivad se Vishwas Act, 2020. (2) The words and expressions used herein and not defined, but defined in the specified Act, the Central Excise Act, 1944, the Customs Act, 1962, the Customs Tariff Act, 1975 or the Finance Act, 1994, as the case may be, shall have the same meaning respectively assigned to them in that Act. CHAPTER II RELAXATION OF CERTAIN PROVISIONS OF SPECIFIED ACT 3. (1) Where, any time-limit has been specified in, or prescribed or notified under, the specified Act which falls during the period from the 20th day of March, 2020 to the 31st day of December, 2020, or such other date after the 31st day of December, 2020, as the Central Government may, by notification, specify in this behalf, for the completion or compliance of such action as- (a) completion of any proceeding or passing of any order or issuance of any notice, intimation, notification, sanction or approval, or such other action, by whatever name called, by any authority, commission or tribunal, by whatever name called, under the provisions of the specified Act; or (b) filing of any ....
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....figures, letters and words "30th day of November, 2020" had been substituted; (ii) delivering of statement of deduction of tax at source under subsection (2A) of section 200 of that Act or statement of collection of tax at source under sub-section (3A) of section 206C thereof for the month of February or March, 2020, or for the quarter ending on the 31st day of March, 2020, as the case may be, the provision of this sub-section shall have the effect as if for the figures, letters and words "31st day of March, 2021", the figures, letters and words "15th day of July, 2020" had been substituted; (iii) delivering of statement of deduction of tax at source under subsection (3) of section 200 of that Act or statement of collection of tax at source under proviso to sub-section (3) of section 206C thereof for the month of February or March, 2020, or for the quarter ending on the 31st day of March, 2020, as the case may be, the provision of this sub-section shall have the effect as if for the figures, letters and words "31st day of March, 2021", the figures, letters and words "31st day of July, 2020" had been substituted; (iv) furnishing of certificate under sectio....
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....ourth proviso, in case of an individual resident in India referred to in sub-section (2) of section 207 of the Income-tax Act, 1961, the tax paid by him under section 140A of that Act within the due date (before extension) provided in that Act, shall be deemed to be the advance tax: Provided also that where the specified Act is the Direct Tax Vivad Se Vishwas Act, 2020, the provision of this sub-section shall have the effect as if- (a) for the figures, letters and words "31st day of December, 2020", the figures, letters and words "30th day of December, 2020" had been substituted for the time limit for the completion or compliance of the action; and (b) for the figures, letters and words "31st day of March, 2021", the figures, letters and words "31st day of December, 2020" had been substituted for making such completion or compliance. (2) Where any due date has been specified in, or prescribed or notified under the specified Act for payment of any amount towards tax or levy, by whatever name called, which falls during the period from the 20th day of March, 2020 to the 29th day of June, 2020 or such other date after the 29th day of June, 2020 as th....
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.... 21. Omission of Fifth and Sixth Provisos to Section 35(1)(iv) 01.06.2020 22. Insertion of Fifth and Sixth Provisos to Section 35(1)(iv) 01.04.2021 23. Omission of Section 35(1A) 01.06.2020 24. Insertion of Section 35(1A) 01.04.2021 25. Section 35AC 01.11.2020 26. Section 56(2) 01.06.2020 & 01.04.2021 27. Section 80G 01.04.2021 28. Section 80G(5) 01.06.2020 &01.04.2021 29. Section 92CA 01.11.2020 30. Section 115AD 01.04.2021 31. Substitution in Explanation to Section 115BBDA(b)(iii) 01.06.2020 & 01.04.2021 32. Substitution in Section 115TD 01.06.2020 & 01.04.2021 33. Insertion of Section 130 01.11.2020 34. Substitution of Proviso to Section 133A(6) 01.11.2020 35. Section 133C 01.11.2020 36. Insertion of Section 135 01.11.2020 37. Insertion of Section 142A 01.11.2020 38. Substitution of Proviso to Section 143(3B) 01.04.2021 39. Insertion of Section 144A 01.04.2021 40. Insertion of Section 144C(14A) 01.11.2020 41. Insertion of Section 151A 01.11.2020 42. Insertion of Section 157A 01.11.202....
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....f such report of audit shall stand extended to the 31" day of December, 2020. 2. This notification shall come into force from the date of its publication in the Official Gazette." 13. Then, on 31.12.2020, another Notification No. 4805 (E) was issued under Section 3(1) of the Enabling Act. Without making any specific reference to reassessment proceedings under the Act, time extensions were granted. For ready reference, that provision reads as below: "NOTIFICATION S.O. 4805 (E) [NO. 93/2020/F. No. 370142/35/2020- TPL], DATED 31.12.2020 In exercise of the powers conferred by sub-section (1) of section 3 of the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (38 of 2020) (hereinafter referred to the Act) and in supersession of the notification of the Government of India in the Ministry of Finance, (Department of Revenue) No. 88/2020 dated the 29th October, 2020, published in the Gazette of India, Extraordinary, Part-II, Section 3, Subsection (ii), vide number S.O. 3906(E), dated the 29th October, 2020, except as respects things done or omitted to be done before such supersession, the Central Government hereby specifies, for the....
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.... of the Act shall, mutatis mutandis apply to these extensions of due date, as they apply to the date referred to in sub-clause (b) of clause (i) of the third proviso thereof; (ii) furnishing of report of audit under any provision of that Act, the time limit for furnishing of such report of audit shall stand extended to the 15th day of January, 2021. 2. This notification shall come into force from the date of its publication in the Official Gazette." 14. On 27.02.2021, Notification No. 966E was issued under Section 3(1) of the Enabling Act. It, for the first time, made specific reference to reassessment proceedings under Section 153 or Section 153B of the Act. For ready reference, the said provisions read as below: "NOTIFICATION NO. S.O. 966(E) [NO. 10/2021/F. NO. 370142/35/2020- TPL], DATED 27-2-2021 In exercise of the powers conferred by sub-section (1) of section 3 of the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (38 of 2020) (hereinafter referred to as the said Act) and in partial modification of the notification of the Government of India in the Ministry of Finance, (Department of Revenue) No. 93/2020 dat....
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....ssued under Section 3(1) of the Enabling Act, containing specific stipulations, both with respect to issuance of notices under Section 148 of the Act and also with respect to completion of reassessment proceedings. For ready reference, the said provisions read as below: "NOTIFICATION S.O. 1432(E) [NO. 20/2021/F. NO. 370142/35/2020-TPL), DATED 31-3-2021 In exercise of the powers conferred by sub-section (1) of section 3 of the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (38 of 2020) (hereinafter referred to as the said Act), and in partial modification of the notification of the Government of India in the Ministry of Finance, (Department of Revenue) No. 93/2020 dated the 31st December, 2020, published in the Gazette of India, Extraordinary, Part II, Section 3, Subsection (ii), vide number S.O. 4805(E), dated the 31st December, the Central Government hereby specifies that,- (A) where the specified Act is the Income-tax Act, 1961 (43 Income-tax Act) and, - (a) the completion of any action referred to in clause (a) of subsection (1) of section 3 of the Act relates to passing of an order under sub-section (13) of secti....
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.... of section 3 of the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (38 of 2020) (hereinafter referred to as the said Act), and in partial modification of the notifications of the Government of India in the Ministry of Finance, (Department of Revenue) No. 93/2020 dated the 31st December, 2020, No. 10/2021 dated the 27th February, 2021 and No. 20/2021 dated the 31st March, 2021, published in the Gazette of India, Extraordinary, Part-II, Section 3, Subsection (ii), vide number S.O. 4805(E), dated the 31st December, 2020, vide number S.O. 966(E) dated the 27th February, 2021 and vide number S.O. 1432(E) dated the 31st March, 2021, respectively (hereinafter referred to as the said notifications), the Central Government hereby specifies for the purpose of sub-section (1) of section 3 of the said Act that, - (A) where the specified Act is the Income-tax Act, 1961 (43 of 1961) (hereinafter referred to as the Income-tax Act) and, - (a) the completion of any action, referred to in clause (a) of subsection (1) of section 3 of the said Act, relates to passing of any order for assessment or reassessment under the Income-tax Act, and the tim....
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....the Finance Act, 2021. (2) Save as otherwise provided in this Act,- (a) sections 2 to 88 shall come into force on the 1st day of April, 2021; (b) sections 108 to 123 shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. Substitution of new section for section 147. 40. For section 147 of the Income-tax Act, the following section shall be substituted, namely:- 147. Income escaping assessment.-If any income chargeable to tax, in the case of an assessee, has escaped assessment for any assessment year, the Assessing Officer may, subject to the provisions of sections 148 to 153, assess or reassess such income or recompute the loss or the depreciation allowance or any other allowance or deduction for such assessment year (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year). Explanation.-For the purposes of assessment or reassessment or re-computation under this section, the Assessing Officer may assess or reassess the income in respect of any issue, which has escaped assessment, and such issue comes to his notice subsequ....
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....the 1st day of April, 2021, in the case of the assessee; or (ii) a survey is conducted under section 133A, other than under sub-section (2A) or sub-section (5) of that section, on or after the 1st day of April, 2021, in the case of the assessee; or (iii) the Assessing Officer is satisfied, with the prior approval of the Principal Commissioner or Commissioner, that any money, bullion, jewellery or other valuable article or thing, seized or requisitioned under section 132 or section 132A in case of any other person on or after the 1st day of April, 2021, belongs to the assessee; or (iv) the Assessing Officer is satisfied, with the prior approval of Principal Commissioner or Commissioner, that any books of account or documents, seized or requisitioned under section 132 or section 132A in case of any other person on or after the 1st day of April, 2021, pertains or pertain to, or any information contained therein, relate to, the assessee, the Assessing Officer shall be deemed to have information which suggests that the income chargeable to tax has escaped assessment in the case of the assessee for the three assessment years immediately preceding the a....
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.... case where,- (a) a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A in the case of the assessee on or after the 1st day of April, 2021; or (b) the Assessing Officer is satisfied, with the prior approval of the Principal Commissioner or Commissioner that any money, bullion, jewellery or other valuable article or thing, seized in a search under section 132 or requisitioned under section 132A, in the case of any other person on or after the 1st day of April, 2021, belongs to the assessee; or (c) the Assessing Officer is satisfied, with the prior approval of the Principal Commissioner or Commissioner that any books of account or documents, seized in a search under section 132 or requisitioned under section 132A, in case of any other person on or after the 1st day of April, 2021, pertains or pertain to, or any information contained therein, relate to, the assessee. Explanation.-For the purposes of this section, specified authority means the specified authority referred to in section 151." Substitution of new section for section 149. 43. For section 149 of t....
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....ty, being land or building or both, shares and securities, loans and advances, deposits in bank account. (2) The provisions of sub-section (1) as to the issue of notice shall be subject to the provisions of section 151. Substitution of new section for section 151. 44. For section 151 of the Income-tax Act, the following section shall be substituted, namely:- 151. Sanction for issue of notice.-Specified authority for the purposes of section 148 and section 148A shall be,- (i) Principal Commissioner or Principal Director or Commissioner or Director, if three years or less than three years have elapsed from the end of the relevant assessment year; (ii) Principal Chief Commissioner or Principal Director General or where there is no Principal Chief Commissioner or Principal Director General, Chief Commissioner or Director General, if more than three years have elapsed from the end of the relevant assessment year Amendment of section 151A. 45. In section 151A of the Income-tax Act, in sub-section (1), in the opening portion, after the words and figures "issuance of notice under section 148", the words, figures and le....
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....te of Haryana and Others, (2004) 8 SCC 1, the import and impact of substituted provision were discussed in the following manner: "23. The text of Section 2 of the Second Amendment Act provides for the word "upto" being substituted for the word "after". What is the meaning and effect of the expression employed therein - "shall be substituted"? 24. The substitution of one text for the other pre-existing text is one of the known and well-recognised practices employed in legislative drafting. "Substitution" has to be distinguished from "supersession" or a mere repeal of an existing provision." 14. Ordinarily wherever the word 'substitute' or 'substitution' is used by the legislature, it has the effect of deleting the old provision and make the new provision operative. The process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed as if the altered words had been writt....
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....ling Act, since on the date of enactment of the Enabling Act, the Finance Act, 2021 was not born. Therefore, it was only through the Finance Act, 2021 that the provisions of the pre-existing law may have been saved if it had been so intended by the Parliament. In absence of that saving clause, there exists no power either under Section 3(1) of the Enabling Act or any other law as may validate the issuance of the impugned Notification. 25. To validate such Notification, would be to resurrect and enforce a dead law, contrary to the statutory law in force, on the date of issuance of impugned Notification dated 27.04.2021. Clearly, that would be a legislative overreach by the delegate and therefore, ultra vires the Constitution of India. In that regard, reliance has been placed on another decision of the Supreme Court in Assam Company Ltd. & Anr. Vs. State of Assam & Ors., (2001) 248 ITR 567 (SC). Therein, it was held as below: "We will now consider the effect of Rule 5 of the State Rules. As noticed hereinabove, Rule 5 of the Rules in its proviso has in unequivocal terms empowered the State authorities in given cases to refuse to accept the computation of agricultural inco....
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....ny Rule made in exercise of such delegated power has to be in consonance with the provisions of the Act, and if the Rule goes beyond what the Act contemplates, the Rule becomes in excess of the power delegated under the Act, and if it does any of the above, the Rule becomes ultra vires the Act." 26. It is also submitted, the delegation authorized being only for the purpose of enlarging limitation under a valid law, such delegation could not be exercised to resurrect the provision of law that stood omitted from the statute book by virtue of its substitution made by the Finance Act, 2021, w.e.f. 01.04.2021. 27. Shri Agarwal has further relied on Union of India & Ors. Vs. S. Srinivasan, (2012) 7 SCC 683, wherein that principle was clearly recognized and applied: "21. At this stage, it is apposite to state about the rule making powers of a delegating authority. If a rule goes beyond the rule making power conferred by the statute, the same has to be declared ultra vires. If a rule supplants any provision for which power has not been conferred, it becomes ultra vires. The basic test is to determine and consider the source of power which is relatable to the rule. Similarly,....
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....ification dated 31.03.2021 issued under the Enabling Act to interpret the principal legislation made by Parliament, being the Finance Act, 2021. He would submit, the delegated legislation can never overreach any Act of principal legislature. Second, though it may be true that the Ordinance was enforced arising from the spread of the pandemic COVID-19 and the circumstances emerging therefrom, yet it would be over simplistic to ignore the provisions of, either the Enabling Act or the Finance Act, 2021 and to read and interpret the provisions of Finance Act, 2021 as inoperative in view of those circumstances. Similarly, practicality of life may never be a good guiding principle to interpret any law less so taxation laws which must be interpreted of their own language and scheme. In absence of any specific clause in Finance Act, 2021, either to save the provisions of the Enabling Act or the Notifications issued thereunder, by no interpretative process can those Notifications be given an extended run of life, beyond 31 March 2020. In fact, any notification issued under the Enabling Act, after the date 31.03.2021 is plainly in conflict with the law as enforced by the Finance Act 2021. It....
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....tions that may have been issued under the Ordinance and the Enabling Act cannot be read to remedy the situation upon the enforcement of the Finance Act, 2021 which has substituted and thus repealed the preexisting provisions of the Act and has re-enacted a new scheme for reassessment under the Act, with effect from 01.04.2021. 31. He would further submit, the provisions of Section 148 read with Section 148A as substituted by Finance Act, 2021 are completely mandatory. There can be no exception to the same. If the impugned Notifications were to be held to be valid after 01.04.2021, it would create a conflict of laws wherein solely on account of that delegated legislation, the mandatory provision of the principal legislature would have been rendered ineffective or inoperative. That may never be done. Elaborating his submissions, Shri Chopra would state, the impugned Notifications read together only provide for an extension of time, limited to the permissions contained in the Enabling Act. Since the Enabling Act does not, in any way, seek to save the pre-existing provisions of the Act, notwithstanding any change of legislation, that intent cannot be created by those Notifications. ....
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....ent or any other authority. 36. Adopting the submissions advanced by Sri Agarwal and Sri Chopra and Sri Abhinav Mehrotra, learned counsel for the petitioner has laid stress on the fact - by virtue of Sections 4 and 3 read with Section 294 of the Act, both substantive and procedural provisions under that Act remain dynamic since the Act seeks material validation every year through enactment of the Finance Act. Income tax laws suffer a process of continuous change and there is no inherent logic or principle embedded in that law, to save a preexisting provision despite enactment of another law in the subsequent year. Such changes are suffered, both by substantive law as also procedural law. 37. Relying on the above, he vehemently urged, the provisions of the Enabling Act together with the Notifications issued thereunder must be seen as they confronted the Act as amended by the Finance Act, 2021, on the date of issuance of the impugned re-assessment notices. Upon enforcement of the Finance Act 2021, the entire situation and dynamics of statutory law underwent a change. While the Enabling Act did not undergo any statutory amendment or change upon enactment of the Finance Act, the ....
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....islature was unaware of the existing situation as regards the Portuguese Civil laws with a different provision for limitation. Needless to record, the special reference has been made to the State of Jammu and Kashmir but after incorporation of the State of Goa, Daman and Diu within the Indian Territory, if there was any intent of having the local law being made prevalent there pertaining to the question of limitation only, there would have been an express exclusion and in the absence of which no contra intention can be deduced, neither any contra inference can be drawn. In any event, as noticed above, the Portuguese Civil Code, in our view, could not be read to be providing a distinct and separate period of limitation for a cause of action arising under the Indian Contract Act or under the Negotiable Instruments Act since the Civil Code ought to be read as one instrument and cause of action arising therefrom ought only to be governed thereunder and not otherwise. The entire Civil Code ought to be treated as a local law or special law including the provisions pertaining to the question of limitation for enforcement of the right arising under that particular Civil Code and not dehors....
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.... in the Karnataka Civil Services (General Recruitment) Rules, 1977 would not affect the special provisions Validly made for the Fire Services. As a matter of fact, under the scheme of Article 309 of the Constitution, once a legislature intervenes to enact a law regulating the conditions of service, the power of the Executive, including the President or the Governor, as the case may be, is totally displaced on the principle of "doctrine of occupied field". If, however, any matter is not touched by that enactment, it will be competent for the Executive to either issue executive instructions or to make a rule under Article 309 in respect of that matter." 43. Next, it has been submitted, the Enabling Act and the Finance Act 2021 do not conflict and, therefore, there is no repugnancy between the two. Both enactments operate in different time spaces. While the Enabling Act takes care of the law as it pre-existed i.e. before the enactment of the Finance Act 2021, the latter Act operates w.e.f. 01.04.2021. Since the old provisions did not exist beyond 31.03.2021 and since the provisions of the Finance Act 2021 have not been given retrospective effect, there is no occasion for any confli....
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.... later Act are so inconsistent with or repugnant to the provisions of the earlier Act that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred. 14. The necessary questions to be asked are: (1) Whether there is direct conflict between the two provisions. (2) Whether the legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law. (3) Whether the two laws occupy the same field. 15. The doctrine of implied repeal is based on the theory that the legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the court applies the doctrine, it does no more than give effect to the intention of the legislature by examining the scope and the object of the two enactments and by a comparison of their provisions. The matter in each case is one of the construction and comparison of the two statutes. The court leans against implying a repeal, unless two Acts are so plainly repugnant to each other that e....
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....ied in the notification: Provided that no direction shall be issued after the 31st day of March, 2022. (3) Every notification issued under sub-section (1) and sub-section (2) shall, as soon as may be after the notification is issued, be laid before each House of Parliament.;" 47. He would submit that that provision alone-pertaining to re-assessment proceedings had been introduced by the Enabling Act w.e.f. 01.11.2020. Otherwise, the Enabling Act does not touch upon re-assessment proceedings in any way. Therefore, it is preposterous on part of the revenue authorities to rely on the Enabling Act for any other purpose. Only upon assumption of jurisdiction and issuance of jurisdictional notice under Section 148 of the Act, a proceeding could come into existence under the pre-existing laws. That procedure having been transformed completely, by the Finance Act, 2021, w.e.f. 01.04.2021 before any reassessment proceeding came into existence, there survives no room to rely on the pre-existing provisions of law. Thus, it has been emphasized by Sri Bansal, the scope of Section 3(1) of the Enabling Act is limited to extend the time qua reassessment proceedings, validly ini....
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....annot insist that the land allotted to the second appellant under the deed on 24-9-1990 shall further conform to the conditions contained in the definition of "stridhana land" in Section 3(42), namely, that she must be holding the land as on 15-2-1970. 16. It is well settled that while dealing with a non obstante clause under which the legislature wants to give overriding effect to a section, the court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section. In Aswini Kumar Ghose v. Arabinda Bose [AIR 1952 SC 369 : 1953 SCR 1] , Patanjali Sastri, J. observed: "The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously;" In Madhav Rao Scindia v. Union of India [(1971) 1 SCC 85] (SCC at p. 139) Hidayatullah, C.J. observed that the non obstante clause is no doubt a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but "for th....
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....e there is any dispute as to whether any sum is payable or not to the Custodian or to the Government, the Custodian has to make an enquiry into the matter and give the person raising the dispute an opportunity of being heard and thereafter decide the question. Further, the section makes the decision of the Custodian final subject to any appeal or revision under the Act and not open to question by any court or any other authority. Lastly the section provides that the sum shall be deemed to be payable to the Custodian notwithstanding that its recovery is barred by the Indian Limitation Act or any other law for the time being in force relating to limitation of action. Sub-sections (1) and (2) are clearly procedural and would apply to all cases which have to be investigated in accordance therewith after October 22, 1956, even though the claim may have arisen before the amended section was inserted in the Act. It is well settled that procedural amendments to a law apply, in the absence of anything to the contrary, retrospectively in the sense that they apply to all actions after the date they come into force even though the actions may have begun earlier or the claim on which the action....
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....ng resort to the pre-existing and now omitted provisions, pertaining to reassessment. 53. Other learned counsel for the petitioners have adopted the aforesaid submissions, noted above. 54. Shri Shashi Prakash Singh, learned Additional Solicitor General of India, appearing for the Union of India as also the CBDT and learned counsel for the revenue, have submitted, the Ordinance was promulgated, occasioned solely by the circumstances arising from the spread of the pandemic COVID-19. The extension of limitation granted or, the strict rule of limitation relaxed by the Ordinance was for the benefit of the assessees as also the statutory authorities. These extensions were granted by way of legislative acceptance of the hard realities obtaining from the spread of the pandemic COVID-19, which largely disabled normal human activity and prevented statutory authorities from discharging their statutory obligations in accordance with law and obstructed and/or prevented the assessees from making compliances and pursing their rights. 55. Relying on the decision of the Supreme Court in Union of India & Ors. Vs. Exide Industries Limited & Anr., (2020) 5 SCC 274, it has been vehemently urge....
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....hile dealing with constitutional validity of a taxation law enacted by Parliament or State Legislature, the court must have regard to the following principles: (i) there is always presumption in favour of constitutionality of a law made by Parliament or a State Legislature, (ii) no enactment can be struck down by just saying that it is arbitrary or unreasonable or irrational but some constitutional infirmity has to be found, (iii) the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law as Parliament and State Legislatures are supposed to be alive to the needs of the people whom they represent and they are the best judge of the community by whose suffrage they come into existence, (iv) hardship is not relevant in pronouncing on the constitutional validity of a fiscal statute or economic law, and (v) in the field of taxation, the legislature enjoys greater latitude for classification....." (emphasis supplied)" 56. It has been further submitted, no ground has been raised in any of the petitions to test the validity of the law and, in fact, no such ground exists. The Enabling Act had become necessary to....
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....t be examined, and the law may be interpreted by applying the mischief rule. As noted above, the mischief being the unforeseen and difficult circumstances arising from spread of pandemic COVID-19, the Enabling Act only sought to remedy the same. Examined in that light, the extension of limitation to issue a reassessment notice under the Act, is incidental to the mischief addressed. 59. Unless free play is given to Section 3(1) of the Enabling Act read with the Notifications issued thereunder, a wholly lop-sided situation would arise whereby the assessee would remain saved from adverse consequences despite non-compliance shown but the statutory authorities would be handtied and restrained from taking any corrective action, solely on account of force majeure. In that regard, reliance has been placed on paragraph 26 of the decision in Union of India & Ors. Vs. Exide Industries Limited & Anr. (supra), which is quoted below: "26. Be it noted that the interpretation of a statute cannot be unrelated to the nature of the statute. In line with other clauses under Section 43-B, clause (f) was enacted to remedy a particular mischief and the concerns of public good, employees' welf....
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.... facts, the Supreme Court has read a similar amendment made to the Insolvency and Bankruptcy Code 2016 to enlarge the limitation, as unexceptionally applicable, to all cases. 63. Having heard learned counsel for the parties and having perused the record, we find that the thrust of the submissions advanced by learned counsel for the petitioners, are: (i) By substituting the provisions of the Act by means of the Finance Act, 2021 with effect from 01.04.2021, the old provisions were omitted from the statute book and replaced by fresh provisions with effect from 01.04.2021. Relying on the principle - substitution omits and thus obliterates the pre-existing provision, it has been further submitted, in absence of any saving clause shown to exist either under the Ordinance or the Enabling Act or the Finance Act 2021, there exists no presumption in favour of the old provision continuing to operate for any purpose, beyond 31.03.2021. (ii) The Act is a dynamic enactment that sustains through enactment of the Finance Act every year. Therefore, on 1st April every year, it is the Act as amended by the Finance Act, for that year which is applied. In the present case, it is t....
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....tantive and procedural law governing the reassessment proceedings. That having been done, together with introduction of section 148-A to the Act, legislative field stood occupied, leaving the delegate with no room to manipulate the law except as to the time lines with respect to proceedings that may have been initiated under the Act (both prior to and after enforcement of the Finance Act, 2021). To bolster their submission, learned counsel for the petitioners also rely on the principle - the delegated legislation can never defeat the principal legislation. (vi) Last, it has also been asserted, the non-obstante clause created under section 3(1) of the Enabling Act must be read in the context and for the purpose or intent for which it is created. It cannot be given a wider meaning or application as may defeat the other laws. 64. As to the first line of reasoning applied by the learned counsel for the petitioner, as noted above, there can be no exception to the principle - an Act of legislative substitution is a composite act. Thereby, the legislature chooses to put in place another or, replace an existing provision of law. It involves simultaneous omission and re-enactmen....
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....g may ever be said to be pending before the assessing authority. The admission of the revenue authorities that all re-assessment notices involved in this batch of writ petitions had been issued after the enforcement date 01.04.2021, is tell-tale and critical. As a fact, no jurisdiction had been assumed by the assessing authority against any of the petitioners, under the unamended law. Hence, no time extension could ever be made under section 3(1) of the Enabling Act, read with the Notifications issued thereunder. 68. The submission of the learned Additional Solicitor General of India that the provision of Section 3(1) of the Enabling Act gave an overriding effect to that Act and therefore saved the provisions as existed under the unamended law, also cannot be accepted. That saving could arise only if jurisdiction had been validly assumed before the date 01.04.2021. In the first place Section 3(1) of the Enabling Act does not speak of saving any provision of law. It only speaks of saving or protecting certain proceedings from being hit by the rule of limitation. That provision also does not speak of saving any proceeding from any law that may be enacted by the Parliament, in futu....
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....ections 147, 148, 148A, 149, 150 and 151 substituted the old/pre-existing provisions of the Act w.e.f. 01.04.2021. We have further concluded, in absence of any proceeding of reassessment having been initiated prior to the date 01.04.2021, it is the amended law alone that would apply. We do not see how the delegate i.e. Central Government or the CBDT could have issued the Notifications, plainly to over reach the principal legislation. Unless harmonized as above, those Notifications would remain invalid. 73. Unless specifically enabled under any law and unless that burden had been discharged by the respondents, we are unable to accept the further submission advanced by the learned Additional Solicitor General of India that practicality dictates that the reassessment proceedings be protected. Practicality, if any, may lead to legislation. Once the matter reaches Court, it is the legislation and its language, and the interpretation offered to that language as may primarily be decisive to govern the outcome of the proceeding. To read practicality into enacted law is dangerous. Also, it would involve legislation by the Court, an idea and exercise we carefully tread away from. 74. S....
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.... shall be filed, for any default arising on or after 25th March, 2020 for a period of six months or such further period, not exceeding one year from such date, as may be notified2in this behalf: Provided that no application shall ever be filed for initiation of corporate insolvency resolution process of a corporate debtor for the said default occurring during the said period. Explanation. - For the removal of doubts, it is hereby clarified that the provisions of this section shall not apply to any default committed under the said sections before 25th March, 2020.]" 78. Plainly, in that case, the earlier provisions were not substituted rather they continued to exist. The parliamentary intervention by introducing Section 10A of that Act only provided - no proceeding be instituted for any default arising after 21.3.2020, for a period of six months or such period not exceeding one year, as may be notified. Thus, in that case, by virtue of amendment made, delegated power created, could be exercised to relax the otherwise stringent provisions of the Act, in cases, wherein difficulties arose from the spread of the pandemic COVID-19. Thus, that ratio is plainly disting....