- (1.) This writ petition challenges the constitutional validity of proviso to Section 148 of the IT Act, 1961 (for short, 'the Act') which makes limitation of 12 months for issuing notice under Section 143(2) of the Act, inapplicable to returns filed after 1st Oct., 1991 for reassessment/recomputation of tax if such reassessment/recomputation was otherwise within limitation. 2. Case of the petitioner is that it had filed its return for the asst. yr. 1989 -90 declarmg nil income claiming exemption under Section 80P of the Act on 31st Oct., 1989, which was accepted. On 11th April, 1996, case of the petitioner for asst. yr. 1991 -92 was reopened and a notice under Section 148 of the Act was issued to the petitioner in response to which return was filed. Thereafter, notice was issued under Section 143(2) of the Act, which was beyond 12 months from the end of the month in which return was filed and assessment was framed under Section 143/148 of the Act on 30th March, 1998. The same was set aside by the CIT(A) on the ground that notice under Section 143(2) of the Act was not within the period of limitation. Against the order passed by the CIT(A), the Revenue went in appeal before the Tribunal, which is pending. 3. Vide Finance Act, 2006, Section 148 has been amended w.e.f. lst Oct., 1991. The said provision before and after the amendment is as under: Before amendment 148. Issue of notice where income has escaped assessment. -(1) Before making the assessment, reassessment or recomputation under Section 147, the AO shall serve on the assessee a notice requiring him to furnish within such period, as may be specified in the notice, a return of his income or the income to any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under Section 139: Aftermer amendment 148. Issue of notice where income has escaped assessment -(1) Before making the assessment, reassessment or recomputation under Section 147. the AO shall serve on the assessee a notice requiring him to furnish within such period, as may be specified in the notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under Section 139: Provided that in a case - (a) where a return has been furnished during the period commencing on the lst day of October, 1991 and ending on the 30th day of September, 2005 in response to a notico served under this section, and (b) subsequently a notice has been served under Sub -section (2) of Section 143 after the expiry of twelve months specified in the proviso to Sub -section (2) of Section 143, as it stood immediately before the amendment of said sub -section by the Finance Act, 2002 (20 of 2002) but before the expiry of the time -limit for makmg the assessment, reassessment or recomputation as specified in Sub -section (2) of Section 153, every such notice referred to in this clause shall be deemed to be a valid notice: Provided further that in a case - (a) where a return has been furnished during the period commencing on the 1st day of October, 1991 and ending on the 30th day of September, 2005, in response to a notice served under this section, and (b) subsequently a notice has been served under Clause (ii) of Sub -section (2) of Section 143 after the expiry of twelve months specified in the proviso to Clause (ii) of Sub -section (2) of Section 143, but before the expiry of the time -limit for making the assessment, reassessment or recomputation as specified in Sub -section (2) of Section 153, every such notice referred to in this clause shall be deemed to be a valid notice. Explanation. -For the removal of doubts, it is hereby declared that nothing contained in the first proviso or the second proviso shall apply to any return which has been furnished on or after the lst day of October, 2005 in response to a notice served under this section. (2) The AO shall, before issuing any notice under this section, record his reasons for doing so. 4. It is submitted that normal period specified under Section 143(2) of issuing notice is 12 months but the same has been made inapplicable for the period during lst Oct., 1991 and 30th Sept., 2005 to returns filed after lst Oct., 1991 for reassessment/recomputation of tax if such reassessment/recomputation was otherwise within limitation. It is submitted that apart from vice of retrospectivity, the provision was discriminatory for selecting special period of limitation for the specified period, thereby creating a special class arbitrarily without there being any nexus of such classification with the object of the statute. 4.1 Learned Counsel for the petitioner has relied upon following judgments in support of his submissions:
(2.) K .T. Moopil Nair v. : [1961]3SCR77 ; S.K. Dutta, ITO v. : [1968]68ITR272(SC) ;
(3.) ANANDJI Haridas and Co. (P) Ltd. v. : [1968]1SCR661 ;;