TaxTMI 
TaxTMI 
2005 (10) TMI 212
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed CIT(A) has erred in law in not considering the well accepted legal position that section 2340 being a substantive law, has to be given a prospective effect, unless otherwise specified. He is not justified in failing to appreciate that the interest being compensatory in nature can be levied only for the period during which the Legislature has sought such compensation. The very fact that the said section is made operative from 1st day of June, 2003 indicates quite clearly that the Legislature expected the compensation only for the period commencing from 1st day of June, 2003. Thus, in the maximum, the learned CIT(A) could have upheld the levy of interest under section 234D only for the period commencing from 1-6-2003. However, he has erred in law in upholding the levy of interest under section 234D even for the, period prior to 1-6-2003 thereby offending the prospective nature of the amendment. (iii) The learned CIT(A) has misled himself while upholding the order of the Assessing Officer inasmuch as at one place he holds that the Assessing Officer is right in levy of interest while at another place (read 8) he holds that section 234D does not have application in case of grant of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....anting of refund should be after 1-6-2003: 3.2 He further submitted that in CIT v. Isthmian Steamship Lines [1951] 20 ITR 572 (SC), it was held that it is a cardinal principle of the tax law that the law to be applied is that in force in assessment year, unless otherwise provided expressly or by necessary implication. In Reliance Jute & Industries Ltd. v. CIT [1979] 120 ITR 921 (SC), it was held that the assessment for one assessment year cannot, in absence of a contrary provision, be effected by the law in force in another assessment year. It is a universally accepted proposition that the law applicable in an assessment year will be the law as on 1st day of April of the assessment year. However, when an amendment is made from an intermediate date, i.e., not from the 1st day of April, the date from which an amendment becomes effective has been a matter of controversy in many cases and from the judicial decisions available on the issue, it is well established that even where the date from which the amendment is to take effect is clearly stated, if the amendment is of procedural nature, it should apply for all pending matters from the said date and in case of substantive law, which ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erest at the rate of 6 per cent per annum for non-filing of return of income, would not apply retrospectively. The Hon'ble High Court observed as follows:- "It appears to us that the present reference is covered by the decision of the Supreme Court in Govinddas' case [1976] 103 ITR 123. Section 139 of the Income-tax Act, 1961, imposed for the first time. a liability on the assessee to pay interest for delayed filing of income-tax return. Under the earlier Act of 1922, though penalty was provided in the case of a delayed submission or non-submission, of a return, interest could not be charged. Interest leviable under the Act of 1961, if not an additional tax, was certainly a new liability. The new Act also included provisions for the purpose, of computing such interest by prescribing dates from which the interest leviable would start to accrue. There was no such prescription in the earlier Act and the assessee had no obligation to take the required steps within such dates as under the Act of 1961. The language of section 139 neither expressly nor by necessary implication makes its operation retrospective. In our view, charging of interest under the Act of 1961 is not m....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pretation, it ought to be construed as prospective only .... We cannot, therefore, consistently with the rule of interpretation which denies retrospective operation to a statute which has the effect of creating or imposing a new obligation or liability, construe sub-section (6) of section 171 as embracing a case where assessment of a Hindu undivided family is made under the provisions of the old Act. Here in the present case, the assessments of the Hindu undivided family for the assessment years 1950-51 to 1956-57 were completed in accordance with the provisions of the old Act which included section 25A and the Income-tax Officer, was, therefore, not entitled to avail of the provision enacted in sub-section (6) read with sub-section (7) of section 171 of the new Act for the purposes of recovering the tax or any part thereof personally from any members of the joint family including the petitioners." 3.4 He also relied on the following decisions in the matter of Central Excise Law where it has been held that applicability of interest under section 11AC of Central Excise and Tariff Act would not apply for wrongful removals of taking place prior to the date of insertion of section 11A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ds as under:- "234D. (1) Subject to the other provisions of this Act, where any refund is granted to the assessee under sub-section (1) of section 143, and- (a) no refund is due on regular assessment; or (b) the amount refunded under sub-section (1) of section 143 exceeds the amount refundable on regular assessment. The assessee shall be liable to pay simple interest at the rate of (two-third) per cent on the whole or the excess amount so refunded, for every month or part of a month comprised in the period from the date of grant of refund to the date of such regular assessment." 4.1 Section provides the assessee who receive the refund at the time of processing of return under section 143(1) and if ultimately in regular assessment i.e., assessment made either under section 143(3) or under section 144 (including assessment made for the first time under section 147), if no refund is due to the assessee, the assessee has to pay simple interest on the whole or excess amount so refunded from the date of grant of refund to the date of such regular assessment. 4.2 It is the contention of appellant that the section was introduced with effect from 1-6-2003 and since the relevant as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rpose having a full view of it. Wherever the intention to impose liability is clear, the Courts ought to have no hesitation in giving a commonsense interpretation to the machinery sections so that the charge does not fail. Thus the provision is machinery provision and not charging provision. The machinery provision will apply from the date they are brought on the statute book whereas the charging section will be the provision as on the first day of the assessment year. Thus, the decision relied by learned counsel in the cases of Isthmian Steamship Lines, Reliance Jute & Industries Ltd. and that of Hon'ble Madras High Court in Sree Karpagambal Mills Ltd.'s case will not apply in the present situation. 4.4 Heydon's rule which is a sound rule of construction of a statute firmly established in England as far back as in [1584] when Heydon's case has decided that "for the true interpretation of all statutes in general, four things are to be discerned and considered: (1) what was the common law before the making of the Act, (2) what was the mischief and defect for which the common law did not provide, (3) what remedy the Parliament hath resolved and appointed to cure the ....