TaxTMI 
TaxTMI 
2022 (3) TMI 1307
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.... law under section 149(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act), the assessee's contention, which has found favour with the learned Commissioner (Appeals) by her reading down the law, is that such an extended time limit of sixteen years, as against the limit of six years prevailing as on 1st July 2012 when section 149(1)(c) came into force, will come into play only in respect of the cases which could have been reopened on 1st July 2012 anyway. Effectively, thus, the reopening of assessments, in respect of income relating to assets located outside India, within sixteen years from the end of the relevant assessment year has been held to be effective, in a full-fledged manner, only with effect from 1st April 2022. 2. It is in this backdrop the appellant Assessing Officer has challenged the correctness of the order dated 26th November 2019 passed by the learned Commissioner (Appeals) in the matter of assessment under section 143(3) read with section 147 for the assessment year 1999-2000. 3. To adjudicate on this appeal, only a very few material facts need to be noted. Mr Thakkar, the assessee before us, is one of the senior-most chartered accountant....
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....limit for reopening assessment from six to sixteen years was introduced in section 149, the assessment had reached finality. This amendment, therefore, could not come to the rescue of the Assessing Officer. In other words, according to the learned Commissioner (Appeals) even though the period for reopening the assessments in case of income from assets located outside India stood increased to 16 years with effect from 1st July 2012, it could only take prospective effect and the assessments having already reached finality will remain unaffected by this amendment. In other words, so far as the assessment years which have become final as on 1st July 2012 in the pre-amendment law, i.e. up to the assessment years 2005-06, could not have been revisited by the Assessing Officer even under the post amendment provision enabling the Assessing Officer to reopen cases up to sixteen years from the end of the relevant assessment year in respect of income escaping assessment with respect to any asset located outside India. The Assessing Officer is aggrieved by this finding, and is in appeal before us. 4. We have heard the rival contentions, perused the material on record and duly considered fac....
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....herefore, as long as sixteen years from the end of the relevant assessment year have not expired, the reassessment notice is in a case involving income from assets located outside India. As for the retrospective application of this provision, Explanation to Section 149 unambiguously provides that "the provisions of sub-sections (1) and (3), as amended by the Finance Act, 2012, shall also be applicable for any assessment year beginning on or before the 1st day of April, 2012". The amendment in Section 149(1), introduced with effect from 1st July 2012, is thus expressly stated to be retrospective in nature, and there is, in our humble understanding, there is no bar on the validity of the retrospectivity of the taxing statute as long as it is clearly specified to be so. As noted, after referring to numerous judicial precedents, by Justice G P Singh in his oft-quoted treatise "Principles of Statutory Interpretation (14th Edition- 2021 reprint- ISBN 978-93-5143-965-3; pages 579-580)', "The Union Parliament and the State Legislature have plenary powers of legislation within the fields assigned to them and, subject to the certain constitutional and judicially recognised restrictions, can ....
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....ed to be retrospective in effect. A careful reading of the judgment does not leave any doubt about this fundamental legal position. It was not the case that Their Lordships noted that the law is retrospective in effect and read down the law on the ground that such a retrospectivity is ultra vires or unconstitutional. Quite to the contrary, Their Lordships have proceeded on the basis that there is no specific mention about the amendment being retrospective in effect, and this fact is evident from several observations made by Their Lordships again and again- such as (a) "In this case, the interpretation proposed by the revenue has the potential of arming its authorities to re-open settled matters, in respect of issues where the citizen could genuinely be sanguine and had no obligation of the kind which the Revenue seeks to impose by the present amendment. All the more significant is the fact that absent a clear indication, every statute is presumed to be prospective"; (b) "In Govinddas v. ITO [1976] 103 ITR 123 the Supreme Court held that Section 171 (6) of the Income Tax Act was prospective and inapplicable for any assessment year prior to 1st April, 1962, the date on which the Act ....
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....g the currency of the assessment year, unless specifically made retrospective, does not apply to the assessment for that year" We humbly bow to these well-settled legal propositions. What essentially follows as a corollary to these propositions is that when it is expressly stated to be retrospective, there is no bar on retrospective application of the said provision either. If that be so, and as Explanation below Section 149(3) specifically states the provision to be retrospective in effect, there cannot be any good reasons to hold the section 149(1)(c) to be only prospective in effect. It must be given full effect as visualized and stated by the law itself. 8. In Braham Dutt's case (supra), however, there was no occasion to refer to, or take note of, the Explanation below Section 149(3), introduced with effect from 1st April 2012, which categorically made the amendment retrospective by stating that "(f)or the removal of doubts, it is at this moment clarified that the provisions of sub-sections (1) and (3), as amended by the Finance Act, 2012, shall also be applicable for any assessment year beginning on or before the 1st day of April, 2012". The section reproduced in the judgme....
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....t "non-consideration of a decision of Jurisdictional Court or of the Supreme Court can be said to be a mistake apparent from the record". The decisions of Hon'ble non-jurisdictional High Courts are thus placed at a level certainly below the Hon'ble High Court, and it's a conscious call that is required to be taken concerning the question whether, on the facts of a particular situation, the non-jurisdictional High Court is required to be followed. Therefore, the decisions of non-jurisdictional High Courts do not constitute a binding judicial precedent in all cases. To a forum like us, following a jurisdictional High Court decision is a compulsion of law and sacrosanct that way, but following a non-jurisdictional High Court is a call of judicial propriety which is never absolute, as it is inherently required to be blended with many other important considerations within the framework of law, or something which cannot be, in deserving cases, deviated from. 9. Clearly, thus, the Hon'ble non-jurisdictional High Court decisions do not bind us in law in all the situations, as held by our Hon'ble jurisdictional High Court in the case of Thane Electricity Co Ltd (supra), and, ....