BELLAND Vs. BANARASI DEBI
LAWS(CAL)-1961-7-26
HIGH COURT OF CALCUTTA
Decided on July 13,1961

BELLAND Appellant
VERSUS
BANARASI DEBI Respondents

JUDGEMENT

BOSE, C.J. - (1.) THIS is an appeal from an order of Sinha J. directing issue of a writ in the nature of mandamus forbidding the ITO, Companies District IV, Calcutta, the CIT and the Union of India from giving effect to or acting upon a notice of reassessment issued under s. 34(i)(a) of the Indian IT Act and further directing the issue of a writ of certiorari quashing the said notice.
(2.) THE respondent No. 1, who is a Hindu lady, filed her return in respect of the asst. yr. 1947-48 before the ITO, Companies District IV, Calcutta. THE assessment was completed in 1948, but it was found that no tax was payable by her. On 2nd April, 1956 a notice dt. 19th March, 1956, issued under s. 34(1)(a) of the Indian IT Act, was served on the respondent. Under s. 34(1)(a), the notice had to be served within eight years from the end of the assessment year, that is, by 31st March, 1956. But it was actually served on 2nd April, 1956 that is, two days later. THE relevant portion of s. 34 may be set out hereunder : "(1) If--(a) the ITO has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under s. 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year, or have been under- assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been computed, or.......... he may in cases falling under cl. (a) at any time within eight years and in cases falling under cl. (b) at any time within four years of the end of that year, serve on the assessee, or, if the assessee is a company, on the principle officer thereof, a notice containing all or any of the requirements which may be included in a notice under-sub-s. (2) of s. 22 and may proceed to assess or reassess such income, profits or gains or recompute the loss or depreciation allowance; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub- section ; Provided that--(i) the ITO shall not issue a notice under this sub-section, unless he has recorded his reasons for doing so and the CIT is satisfied on such reasons recorded that it is a fit case for the issue of such notice;............. (3) No order of assessment under s. 23 to which cl. (c) of sub-s. (1) of s. 28 applies or of assessment or re-assessment in cases falling within cl. (a) of sub-s. (1) of this section shall be made after the expiry of eight years, and no order of assessment or re-assessment in any other case shall be made after the expiry of four years, from the end of the year in which the income, profits or gains were first assessable : Provided that where a notice under sub-s. (1) has been issued within the time therein limited, the assessment or re-assessment to be made in pursuance of such notice may be made before the expiry of one year from the date of the service of the notice even if such period exceeds the period of eight years or four years, as the case may be." Prior to the date of service of this notice, s. 34 was amended by s. 18 of the Finance Act, 1956. THE relevant portion of such amendment is set out hereunder : "34.(1) If--(a) the ITO has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under s. 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to income-tax have escaped assessment for that year, or have been under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been computed, or......... he may in case falling under cl. (a) at any time......... serve on the assessee......... a notice containing all or any of the requirements which may be included in a notice under sub-s. (2) of s. 22 and may proceed to assess or re-assess such income, profits or gains or recompute the loss or depreciation allowance; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub- section : Provided that the ITO shall not issue a notice under cl. (a) of sub-s. (1)-- (i) for any year prior to the year ending on the 31st March, 1941; (ii) for any year, if eight years have elapsed after the expiry of that year, unless the income, profits or gains chargeable to income-tax which have escaped assessment or have been under- assessed or assessed at too low a rate or have been made the subject of excessive relief under this Act, or the loss or depreciation allowance which has been computed in excess, amount to, or are likely to amount to, one lakh of rupees or more in the aggregate, either for that year, or for that year and any other year or years after which or after each of which eight years have elapsed, not being a year or years ending before the 31st March, 1941; (iii) for any year, unless he has recorded his reasons for doing so, and, in any case falling under cl. (ii), unless the Central Board of Revenue, and, in any other case, the CIT, is satisfied on such reasons recorded that it is a fit case for the issue of such notice : Provided further that the ITO shall not issue a notice under this sub-section for any year, after the expiry of two years from that year, if the person on whom the assessment or re-assessment is to be made in pursuance of the notice is a person deemed to be the agent of a non-resident person under s. 43 : Provided further that the tax shall be chargeable at the rate at which it would have been charged had the income, profits or gains not escaped assessment or full assessment, as the case may be." On 19th March, 1957, the respondent affirmed a petition under Art. 226 of the Constitution and obtained a rule nisi on 20th March, 1957. The rule came up for hearing before Sinha J. and the only point raised before the learned judge was the question of limitation, that is, the notice under s. 34(1)(a) was issued or served beyond the period of limitation prescribed in the section. On 11th Sept., 1958, the rule was made absolute and writs were issued directing the respondents to for bear from giving effect to the notice under s. 34(1)(a). The learned judge delivered judgement in Debi Dutta Moody vs. T. Bellan AIR (1959) Cal 567 and followed this judgement in disposing of this case which is before us and which is numbered as Matter No. 48 of 1957. On 2nd March, 1959, the respondents preferred the present appeal against the order of Sinha J. After the filing of this appeal on 12th March, 1959, s. 34 was further amended by s. 2 of Act 1 of 1959 in the following manner : "(4) A notice under cl. (a) of sub-s. (1) may be issued at any time notwithstanding that at the time of the issue of the notice the period of eight years specified in that sub-section before its amendment by cl. (a) of s. 18 of the Finance Act, 1956 (18 of 1956), had expired in respect of the year to which the notice relates." And a further section numbered as s. 4 was introduced in the Indian IT (Amendment) Act, 1959, in the following terms : "4. Saving of notices, assessments, etc., in certain cases.--No notice issued under cl. (a) of sub-s. (1) of s. 34 of the principal Act at any time before the commencement of this Act and no assessment, re-assessment or settlement made or other proceedings taken in consequence of such notice shall be called in question in any Court, Tribunal or other authority merely on the ground that at the time the notice was issued or at the time the assessment or re-assessment was made, the time within which such notice should have been issued or the assessment or reassessment should have been made under that section as in force before its amendment by cl. (a) of s. 18 of the Finance Act, 1956 (18 of 1956), had expired." It is not disputed before us that the judgement of Sinha J. is a correct one according to the law as it then stood, but it is argued that the appeal before us being in the nature of a rehearing and continuation of the original proceeding, this Court of appeal should grant relief to the appellants on the basis of the law as it stands at the time of the hearing of the appeal and the main contention of Mr. Meyer, the learned counsel for the appellants, is that in view of s. 4, which has been introduced by the amending Act 1 of 1959, which as pointed out already, came into force during the pendency of the appeal and which bars all challenge to the issue of the notice on the ground of limitation, this appeal Court should hold that the notice dt. 19th March, 1956, which was served on 2nd April, 1956 is immune from attack on the ground of limitation and so it was a good and valid notice. The learned counsel has argued that, although it is clear that in the ordinary way a Court of appeal cannot take into account all statutes which have been passed in the interval since the case was decided by the Court of first instance inasmuch as the rights of the litigants are generally to be determined according to the law in force at the date of the hearing before the Court of first instance, the position is different when the statute is made retrospective in operation either by express words or necessary intendment. In such a case, the Court of appeal can give effect to the retrospective intendment of the Act passed in the interval since the case was decided by the Court of the first instance,. The learned counsel has, in support of this argument, relied on a decision of the Federal Court in Lachmeshwar Prasad Shukul vs. Keshwar Lal Chaudhari (1940) FCR 84 and on another decision of the Federal Court in Raja Bahadur Kamakshya Narain Singh vs. CIt (1947) 15 ItR 311 317. In the last mentioned case, Kania J., who delivered the judgement of the Federal Court, made the following observation : "When an Tribunal (whether it is the Asstt. CIt, or the Tribunal of Appeal, or the High Court, or the Federal Court) decides the appeal it has to do so according to the law then in operation. If pending the litigation or pending the appeal some relevant legislation is enacted by the appropriate legislative authority, the deciding Tribunal must give effect to it." The learned judge, in support of this proposition, referred to the decision of the Judicial Committee reported as Mukherjee vs. Ramratan Kuer AIR (1936) PC 49 and to the earlier Federal Court case of Lachmeshwar Prasad Shukul FCR (1940) 84 and concluded the discussion on this point with the following words (1947) 15 ItR 311 : "It was the agreed view of all the judges that in deciding the appeal they had to take into account legislative changes made since the decision under appeal was given. It was pointed out that this rule of law has been accepted not only in England (Attorney-General vs. Birmingham, Tame, and Rea District Drainage Board (1912) AC 788, but also in the United States of America. Once the new legislation is held to have retrospective operation it is clear that the Court of appeal had to decide the appeal according to the law then prevailing, because the adjudication on the rights of the parties as made by the lower Court was not final."
(3.) THE propositions laid down in this case have not been disputed on behalf of the respondent and both parties before us accept the position that this Court can in deciding this appeal give relief on the basis of the change in the law now brought about by the amendment of 1959. For the purpose of invoking the provisions of s. 4 as introduced by the amending Act 1 of 1959, Mr. Meyer has argued that the word "issue" as used in the proviso to sub-s. (3) of s. 34 of the Indian IT Act, as it stood before the amendment of 1956, should be equated with the expression "serve" as used in sub-s. (1) of s. 34 of the Act and as the notice dt. 19th March, 1956, was actually served on 2nd April, 1956 the notice can be said to have been issued beyond the period of eight years as contemplated in s. 4 of Act 1 of 1959 and as such, such notice is protected from challenge on the ground of limitation by virtue of the express terms of the said section of Act 1 of 1959. In support of this contention, our attention has been drawn to a decision of the Bombay High Court reported as CIT vs. D.V. Ghurye (1957) 31 ITR 683. It has been held by the Bombay High Court in this case that the proper construction of s. 34(1)(a) read with the proviso to sub-s. (3) of s. 34 is that the expression "issued" as used in the proviso to sub-s. (3) of s. 34 should be equated with the expression served"as occurring in sub-s. (1) rather than the word "served" should be equated with the expression "issued" : used in the proviso to sub-s. (3). At page 686, Chagla C.J. in dealing with the question of construction observed : "If the notice is served beyond the time limited by s. 34, then the notice is bad and any proceedings taken pursuant to that notice are also bad. What is relied upon in the proviso is the language used in the first part of it, namely, 'where a notice under sub-s. (1) has been issued within the time therein limited', and what is urged is that we must read in s. 34, instead of the language used by the legislature, namely, that the notice must be 'served' the language used by the legislature in the proviso to sub-s. (3), namely, that the notice has been 'issued'. In other words, the attempt is to equate the expression 'served' used in s. 34 with the expression 'issued' used in the proviso to sub-s. (3). Now we must frankly confess that we find it difficult to understand why the legislature has used in the proviso the expression 'where a notice under sub-s. (1) has been issued within the time therein limited'. In sub-s. (1) no time is limited for the issue of the notice : time is only limited for the service of the notice; and therefore it is more appropriate that the expression 'issued' used in the proviso to sub-s. (3) should be equated with the expression 'served' rather than that the expression 'served' used in sub-s. (1) should be equated with the expression 'issued' used in the proviso to sub-s. (3). But assuming we are prepared to concede the Advocate-General's contention that we must construe the expression 'limited' as 'mentioned' and all that the proviso refers to is the actual quantum of time mentioned in s. 34(1), and that for the purpose of that proviso we must consider as the material or relevant date the issue of the notice and not the service of the notice, even so, as already pointed out, the question of the application of the proviso only arises when an assessment order is made." It may be pointed out that in this Bombay case, there is a reference to a judgement of the Allahabad High Court in Sri Niwas vs. ITO, Sitapur (1956) 30 ITR 381 where a similar view with regard to the construction of the proviso to sub-s. (3) and sub-s. (1)(a) of s. 34 was taken.;


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