Assistant Commercial Taxes Officer, Udaipur v. Shrinath Emporium City Palace Road, Udaipur
2000-01-27
RAJESH BALIA
body2000
DigiLaw.ai
Honble BALIA, J.–The short issue has been raised in this petition. The period for which the issue related ended on 31.03.1991. After regular assessment was framed, notices were issued u/s. 12 on 18.4.96 for re-opening the assessment for that period and final order of re-assessment was made on it. In this revision we are not concerned with the merit of the re-assessment order. Question is whether the Assessing Officer has jurisdiction u/s. 12 to issue notice on 18.4.96. The question arises as a result of amendment effected in Sec. 12 of Rajasthan Sales Tax Act, 1954 by the Rajasthan Sales Tax (Amendment) Act, 1991. In sub-section (2) of Section 12 of the Rajasthan Sales Tax Act, 1954 the word `five has been for word `eight. In other words before its assessment. (2). Relevant part of sub-section (2) of Section 12 read prior to amendment w.e.f. 1.4.91 as under: ``(2) No notice under sub-section (1) shall be issued in respect of any business, registration fee or exemption fee for any year after the expiry of eight years from the end of the relevant assessment year. Provided that.............. Explanation:-............ Sub-section (2) in amended form is as under: No notice under sub-section (1) shall be issued in respect of any business, registration fee or exemption fee for any year after the expiry of five years from the end of the relevant assessment year. (3). It is not disputed that case is neither covered by the proviso nor the Explanation in the question applies. There is no dispute also that the date on which relevant assessment year ended is 31.3.91. Under the unamended provision the re-assessment proceeding could be initiated upto 31.3.99. As per amended provision the last date upto which proceedings could be initiated u/s. 12 expired on 31.3.96. (4). Learned counsel for the revenue contents that entire proceedings including re-opening of any completed proceedings are governed by the law that was in force during the relevant assessment year for which proceedings are initiated and not the law as on the date notices were issued. (5). He places reliance on Section 6 of the Rajasthan General Clauses Act which reads as under: ``Effect of repeal:-Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made then, unless a different intention appears, the repeal shall not: (a) ...........
(5). He places reliance on Section 6 of the Rajasthan General Clauses Act which reads as under: ``Effect of repeal:-Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made then, unless a different intention appears, the repeal shall not: (a) ........... (b) ........... (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) ............ (e)............. and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act or Regulation had not been passed. (6). The argument though appears to be facile does not sustain itself on scrutiny. (7). The provision reveals that repeal of enactment neither revive anything not in force or existing at the time at which repeal takes effect nor affects anything duly done or suffered thereunder. Repeal of an Act also does not affect the vested right that has come into existence prior to the commencement of the Repealing Act. Such rights remain enforceable. However, there is no vested right in the procedure or manner in which the right can be enforced. So far as procedure for enforcement is concerned unless otherwise provided by law it has to be as per the procedure existing as on the date such right or liability is sought to be enforced. While liability to be taxed existed, as per the provisions of the Act existing for the relevant period, however the manner and the procedure by which such right is to be enforced, if amended, has to be governed by the law as it exists from time to time. (8). In this connection it becomes relevant to understand principle underlying. Section 30 of the Limitation Act 1908. It is cardinal principle of law of limitation that it bars. The remedy but does not extinguish right itself. It is merely law of procedure. The various Courts expressed their opinion that: The law of limitation being a law of procedure is retrospective in operation. Hence the law of limitation which is applicable to any particular suit or proceeding is the law which is in force on the day on which such suit or proceeding is instituted notwithstanding that the cause of action may have arisen before such Act came into force.
Hence the law of limitation which is applicable to any particular suit or proceeding is the law which is in force on the day on which such suit or proceeding is instituted notwithstanding that the cause of action may have arisen before such Act came into force. Reference in this connection may be made in Sew Narayan Choudhary vs. M/s. Indian Roadways, Calcutta & Anr. (1), Mani Devi & Ors. vs. Ram Prasad & others (2) and in Ashutosh Das vs. Keshab Chandra Ghosh (3). (9). The Section 30 of the Limitation Act 1963 which provided that notwithstanding anything contained in this Act 1963; ``any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted within a period of seven years next after the commencement of this Act, or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expires earlier. (10). Like provisions were also made where shorter period of limitation has been prescribed in the Act of 1963 for preferring an appeal or application than what was provided in Indian Limitation Act 1908. The purport of enacting Section 30 of Limitation Act has been interpreted by various courts in the country to mean that Indian Limitation Act 1963 which repealed the Act of 1908 applies to all suits and proceedings instituted after its commencement. As a result of such an application, suits which may be within time according to the old Act may become barred under the new Act, because of the shorter period of limitation that may be provided under it for such suits, appeals or applications, as the period of limitation as prescribed under law in force as on the date right of filing suit is exercised governed the question whether as on the date of initiation of proceedings the plaintiff could exercise right. It is to remedy this hardship that Section 30 was enacted in the Act of 1963.
It is to remedy this hardship that Section 30 was enacted in the Act of 1963. It provides that where the period prescribed by the new Act for any suit, appeal or application is shorter than the period prescribed by the old Act, the suit or appeal or application may be filed either within the period prescribed by the old Act or within the special period of seven years in the case of suits or 90 days in the case of appeals or applications allowed by this section, whichever period expires earlier. (11). In this connection decision in Ramprasad Dagaduram vs. Vijaykumar Motilal Hirakhanwala and others (4) may be noticed. It was a case where, mortgage was executed in 1934 between the parties. The parties were guided by the Hyderabad Limitation Act under which the period of Limitation for a suit by a mortgagee for foreclosure was thirty years from the date when the money secured by the mortgage became due. But as from April 1, 1951, the Hyderabad Limitation Act was repealed and the Indian Limitation Act, 1908 was extended to the State of Hyderabad. The parties came to be governed by the Indian Limitation Act 1908 w.e.f. 1.4.51. When suit was filed the Indian Limitation Act 1908 was governing the period of limitation. Learned counsel for the mortgagee had contended that under proviso to Sec. 6 of the Part B States (Laws) Act, 1951 Art. 133 of the Hyderabad Limitation Act continued to apply to the suit. The Court rejected the contention by holding that there is no substance in this contention. The respondents had no vested right in the law of procedure for enforcement of the mortgage. They did not acquire under Art. 133 of the Hyderabad Limitation Act any right or privilege as contemplated by the proviso to Sec. 6 of the Part B States (Laws) Act, 1951. No doubt, Art. 132 of the Indian Limitation Act, 1908 abridged the period of limitation for the enforcement of the mortgage. But this abridgment did not impair or take away any vested right. Section 30 of the Indian Limitation Act, 1908 inserted by the Part B States (Laws) Act, 1951 made suitable provision safeguarding vested rights in cases where the period prescribed was shorter than that prescribed by the corresponding law previously in force in the Part B State. (12).
But this abridgment did not impair or take away any vested right. Section 30 of the Indian Limitation Act, 1908 inserted by the Part B States (Laws) Act, 1951 made suitable provision safeguarding vested rights in cases where the period prescribed was shorter than that prescribed by the corresponding law previously in force in the Part B State. (12). The question can be viewed from slightly different angle. Prescribing of period under the taxing statutes are usually not considered as law of repose. That is to say that for all times, in such cases law authority re-opening of closed assessment is to be looked as on the date power thereunder is to be exercised. It is not a case for enforcement of right but it is a case of exercise of power by the authority designated under the relevant statute. When the officer taken recourse to the proceedings and exercises his power, it has to accord with provision at the time the authority under the statute seeks to exercise power conferred by statute, it has to be in accordance of conditions under which such power can be exercised. There is no vested right in any authority to exercise powers in future. (13). In S.C. Parashar and another vs. Vasantsen Dwarkadas and others (5) it was observed by Per Hidayatullah and Raghubar Dayal, JJ. ``What the law does by prescribing certain periods of time for action is to create a bar against its own officers administering the law. It tries to trim between recovery of tax and the possibility of harassment to an innocent person and fixes a duration for action from these two points of views. (14). In the present case the Assessing Authority exercised his power u/s. 12 on 18.4.96. As on that date his power to issue notice was conditioned by the provisions as it stood on 18.4.96. As per such provision he could exercise his power to issue notices u/s. 12 only within five years from the end of relevant assessment year. Such period has admittedly expired on 31.3.96. In the absence of any saving clause for making special provision for saving any action, which may become barred by time due to prescribing shorter period within which action could be initiated, no benefit can be drawn from the provisions of General Clauses Act.
Such period has admittedly expired on 31.3.96. In the absence of any saving clause for making special provision for saving any action, which may become barred by time due to prescribing shorter period within which action could be initiated, no benefit can be drawn from the provisions of General Clauses Act. The Assessing Officer as on 18.4.96 had no jurisdiction for initiating proceeding u/s. 12 in the present case and action taken by him cannot be sustained. The Tribunal was justified in reaching its conclusion. (15). The revision fails and is hereby dismissed with no order as to costs.