HARISH KESHAVLAL KESHARIA, MUMBAI V. DCIT CEN CIR-I, MUMBAI

ITSSA 55/MUM/2009

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 2898 (ITAT-MUMBAI)
• Duration Of Justice: 7 year(s) 7 month(s) 21 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 02-01-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 15-09-2016
• Assessment Year: misc
• Appeal Filed On: 11-05-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Period of limitation; Retrospective amendment; Block assessment; Time period of passing order
• Section: 143(3); 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H, BENCH M UMBAI BEFORE SHRI SANJAY ARORA, AM & SHRI PAWAN SINGH, JM IT(SS)A NO.55/MUM/2009 (BLOCK ASSESSMENT YEAR: 1987-88 TO 1996-97) HARISH KESHAVLAL KESHARIA, 505- 506, YOGESHWAR BHAVAN, 135- 137, KAZI SAY ED STREET, MASJID, MUMBAI-400003. VS. DY. CIT CC-I, AAYAKAR BHAVAN, MUMBAI. PAN: ABVPK 2104R ( APPELLANT ) .. ( RESPONDENT ) ITA NO.3059/MUM/2009 (ASSESSMENT YEAR: 2000-2001) HARISH KESHAVLAL KESHARIA, 505- 506, YOGESHWAR BHAVAN, 135- 137, KAZI SAYED STREET, MASJID, MUMBAI-400003. VS. DY. CIT CC-I, , AAYAKAR BHAVAN, MUMBAI. PAN: ABVPK 2104R ( APPELLANT ) .. ( RESPONDENT ) ITA NOS. 3052 TO 3058/MUM/2009 (ASSESSMENT YEARS: 1994-95 TO 2001-02) KESHAVLAL NARANJI & CO., 505- 506, YOGESHWAR BHAVAN, 135- 137, KAZI SAYED STREET, MASJID, MUMBAI-400003. VS. DY. CIT CC-I, AAYAKAR BHAVAN, MUMBAI. PAN: AAAFK 9899F ( APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SH. ASHOK PATIL (AR) REVENUE BY : SHRI RAHUL RAMAN (CIT DR) SHRI ARUN SWAMY (DR) DATE OF HEARING : 15/09/2016 DATE OF PRONOUNCEMENT : 02/01/2017 O R D E R 2 PER BENCH 1. THIS IS A SET OF NINE APPEALS U/S. 253 OF INCOME -TAX ACT, 1961 (THE ACT HEREINAFTER) BY TWO INTER-RELATED ASSESSEES, A FIRM AND ITS PARTNER, DIRECTED AGAINST THE ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS)(C ENTRAL)-1, MUMBAI (CIT (A) FOR SHORT) FOR DIFFERENT ASSESSMENT YEARS. WHI LE IT(SS)A NO. 55/MUM/2009 AND ITA NO. 3059/MUM/2009 ARE IN RESPECT OF THE IND IVIDUAL, RELATING TO THE BLOCK PERIOD 1987-88 TO 1996-97 AND ASSESSMENT YEAR (AY) 2000-01 RESPECTIVELY, THE REST OF THE APPEALS ARE IN CASE OF THE FIRM FOR AYS 1994-95 TO 2001-02. IN ALL THESE APPEALS, BESIDES THE ADDITIONS IN QUANTUM ASS ESSMENT, THE ASSESSEES HAVE QUESTIONED THE LEGAL VALIDITY OF THE ASSESSMENTS, C LAIMING THEM, PASSED VIDE ORDERS DATED 03.04.2008 AND 04.04.2008, TO BE BEYOND THE T IME LIMIT PRESCRIBED U/S. 153 R/W S. 245HA OF THE ACT. THE SAME WERE ACCORDINGLY H EARD TOGETHER. 2. THE ONLY ISSUE ARISING IN THESE APPEALS IS IF TH E ASSESSMENTS ARE BARRED BY LIMITATION. THOUGH THE APPEALS RAISE, WITHOUT PREJU DICE, GROUNDS CHALLENGING THE ASSESSMENTS ON MERITS AS WELL, THE SAME WERE NOT PR ESSED BY THE LD. COUNSEL DURING HEARING, PLACING HIS INITIALS ON THE RELEVANT GROUN DS IN TOKEN THEREOF. THE ASSESSMENT FOR THE BLOCK PERIOD (ASSESSMENT YEARS 1 987-88 TO 1996-97), FRAMED EARLIER, CONSEQUENT TO A SEARCH, WAS SET ASIDE IN A PPEAL BY THE TRIBUNAL WITH A DIRECTION TO THE ASSESSING OFFICER (AO) TO PASS ORD ER/S AFRESH. SIMILAR IS THE CASE FOR THE FIRM, KESHAVLAL NARANJI & CO . (FOR ASSESSMENT YEARS 1994-95 TO 2001-02), WHEREIN THE ASSESSMENTS U/S. 143(3) WERE SET ASIDE BY THE FIRST APPELLATE AUTHORITY IN VIEW OF THE SET ASIDE AFORE-SAID BY THE TRIBUNAL IN HARISH KESHAVLAL KESHARIA , PARTNER. THE APPELLANTS, IN THE SECOND ROUND, MOVED THE HON'BLE INCOME TAX SETTLEMENT COMMISSION (ITSC), WHICH ADMITTED THE AP PLICATIONS U/S. 245C VIDE ITS ORDER S. 245D(1) DATED 8.01.2003 , AS ALSO IN THE CASE OF HARISH KESHAVLAL KESHARIA FOR ASSESSMENT YEAR 2000-01. SEC. 245D(2D), WHICH S TANDS SUBSTITUTED (ALONG WITH SUB-SECTIONS (2A), (2B) & (2C)) BY FINANCE ACT, 200 7 W.E.F. 01.06.2007, READS AS UNDER: 3 PROCEDURE ON RECEIPT OF AN APPLICATION UNDER SECTI ON 245C. 245D. (1) (2) (2A) TO (2C) . (2D) WHERE AN APPLICATION WAS MADE UNDER SUB-SECTIO N (1) OF SECTION 245C BEFORE THE 1ST DAY OF JUNE, 2007 AND AN ORDER UNDER THE PROVISIONS OF SUB SECTION (1) OF THIS SECTION, AS THEY STOOD I MMEDIATELY BEFORE THEIR AMENDMENT BY THE FINANCE ACT, 2007, ALLOWING THE AP PLICATION TO HAVE BEEN PROCEEDED WITH, HAS BEEN PASSED BEFORE THE 1ST DAY OF JUNE, 2007, BUT AN ORDER UNDER THE PROVISIONS OF SUB-SECTION (4 ), AS THEY STOOD IMMEDIATELY BEFORE THEIR AMENDMENT BY THE FINANCE A CT, 2007, WAS NOT PASSED BEFORE THE 1 ST DAY OF JUNE, 2007, SUCH APPLICATION SHALL NOT BE ALLOWED TO BE FURTHER PROCEEDED WITH UNLESS THE ADD ITIONAL TAX ON THE INCOME DISCLOSED IN SUCH APPLICATION AND THE INTERE ST THEREON, IS, NOTWITHSTANDING ANY EXTENSION OF TIME ALREADY GRANT ED BY THE SETTLEMENT COMMISSION, PAID ON OR BEFORE THE 31 ST DAY OF JULY, 2007. SINCE THE ASSESSEE/S DID NOT MAKE THE PAYMENT OF TH E ADMITTED DUES BY 31.07.2007, I.E., THE TIME ALLOWED U/S. 245D(2D), THE HON'BLE I TSC ABATED THE PROCEEDINGS BEFORE IT VIDE ITS ORDER U/S. 245HA(1) DATED 31.01. 2008. SEC. 245HA PROVIDES FOR ABATEMENT OF THE PROCEEDINGS BEFORE THE SETTLEMENT COMMISSION UNDER SPECIFIED CIRCUMSTANCES, INCLUDING THAT SPECIFIED IN S. 245D( 2D), AND WHICH IS TO TAKE EFFECT FROM THE SPECIFIED DATE, BEING 31.07.2007 FOR THE ABATEMENT U/S. 245D(2D) (S. 245HA(1) R/W EXPLANATION THERETO). THE ASSESSMENTS IN THE PRESENT CASES WE RE FRAMED ON 03.04.2008 AND 04.04.2008. THE ASSESSEE PL EADS THAT THE ASSESSMENTS ARE BARRED BY TIME AS THE AO COULD NOT BE MADE THE SAME BEYOND THE PERIOD, COMMENCING 01.08.2007, I.E., DATE IMMEDIATELY FOLLO WING THE DATE ON WHICH THE ASSESSMENT/S ABATED, THE PERIOD AVAILABLE TO THE AO FOR MAKING ASSESSMENT IN TERMS OF S. 153 AT THE TIME THE ASSESSEE MOVED THE APPLIC ATION BEFORE THE HON'BLE ITSC. FOR EXAMPLE, 93 DAYS IN THE CASE OF HARISH KESHAVLAL KESHARIA (BLOCK ASSESSMENT), IN-AS-MUCH AS THE APPLICATION TO THE HON'BLE ITSC WA S MADE ON 29.12.2000 WHILE THE TIME AVAILABLE WITH THE AO FOR PASSING THE ASSE SSMENT ORDER, IN TERMS OF S. 153, WAS UP TO 31.03.2001, SO THAT 01.11.2007 BECOMES TH E LAST DATE FOR FRAMING THE ASSESSMENT, WHILE THE ASSESSMENT ORDER WAS ACTUALLY PASSED ON 03.04.2008. THIS 4 ACCORDS WITH THE TIME LIMIT FOR FRAMING AN ASSESSME NT BY THE AO U/S. 245HA (2) R/W S. 245HA(4), WHICH READ AS UNDER, WHEN READ ALO NG WITH S. 153: ABATEMENT OF PROCEEDINGS BEFORE SETTLEMENT COMMISS ION 245HA. (1) WHERE - .... (I) .. (II) AN APPLICATION MADE UNDER SECTION 245C HAS NOT BEEN ALLOWED TO BE PROCEEDED WITH UNDER SUB-SECTION (2A) OR FURTHER PR OCEEDED WITH UNDER SUB-SECTION (2D) OF SECTION 245D; OR (III) TO (IV) THE PROCEEDINGS BEFORE THE SETTLE MENT COMMISSION SHALL ABATE ON THE SPECIFIED DATE. EXPLANATION. FOR THE PURPOSES OF THIS SUB-SECTION, SPECIFIED DATE MEANS (A) (B) IN RESPECT OF AN APPLICATION REFERRED TO IN CLAUSE (II), THE 31 ST DAY OF JULY, 2007; (C) TO (D) (2) WHERE A PROCEEDING BEFORE THE SETTLEMENT COMMIS SION ABATES, THE ASSESSING OFFICER, OR, AS THE CASE MAY BE, ANY OTHE R INCOME-TAX AUTHORITY BEFORE WHOM THE PROCEEDING AT THE TIME OF MAKING TH E APPLICATION WAS PENDING, SHALL DISPOSE OF THE CASE IN ACCORDANCE WI TH THE PROVISIONS OF THIS ACT AS IF NO APPLICATION UNDER SECTION 245C HA D BEEN MADE. (3) . (4) FOR THE PURPOSES OF THE TIME-LIMIT UNDER SECTIO NS 149, 153, 153B, 154, 155, 158BE AND 231 AND FOR THE PURPOSES OF PAY MENT OF INTEREST UNDER SECTION 243 OR 244 OR, AS THE CASE MAY BE, SE CTION 244A, FOR MAKING THE ASSESSMENT OR REASSESSMENT UNDER SUB-SEC TION (2), THE PERIOD COMMENCING ON AND FROM THE DATE OF THE APPLICATION TO THE SETTLEMENT COMMISSION UNDER SECTION 245C AND ENDING WITH SPEC IFIED DATE REFERRED TO IN SUB-SECTION (1) SHALL BE EXCLUDED; A ND WHERE THE ASSESSEE IS A FIRM, FOR THE PURPOSES OF THE TIME-LIMIT FOR CANC ELLATION OF REGISTRATION OF THE FIRM UNDER SUB-SECTION (1) OF SECTION 186, T HE PERIOD AFORESAID SHALL, LIKEWISE, BE EXCLUDED. THIS, HOWEVER, DID NOT FIND FAVOUR WITH THE FIRST A PPELLATE AUTHORITY AS SECTION 153 HAD BEEN SIMULTANEOUSLY AMENDED BY FINA NCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01.06.2007. THE AMENDMENT MAKES IT AMPLY CLEAR THAT WHERE THE PROCEEDINGS ABATE U/S. 245HA, AND THE PER IOD OF LIMITATION AVAILABLE 5 WITH THE AO FOR MAKING AN ORDER OF ASSESSMENT, I.E. , AFTER THE EXCLUSION OF THE PERIOD U/S. 245HA(4), WAS LESS THAN ONE YEAR, THE S AME SHALL BE DEEMED TO BE EXTENDED TO ONE YEAR. THE AMENDMENT TO S. 153, BY IN SERTION OF A PROVISO , EXTENDS THE LIMITATION PERIOD WITH RETROSPECTIVE EFFECT FRO M 01.6.2007 . THE SAME BEING PRIOR TO THE DATE ON WHICH THE LIMITATION OTHERWISE EXPIRED, I.E., 01.11.2007, WOULD THUS HAVE THE EFFECT OF EXTENDING THE LIMITATION PE RIOD TO 30.07.2008 . THE APPEALS BEING DISMISSED ON THE POINT OF LIMITATION THUS, TH E ASSESSEES ARE IN SECOND APPEAL. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 3.1 THE FACTS ARE NOT IN DISPUTE AND, ADMITTEDLY, BU T FOR THE SECOND PROVISO TO EXPLANATION 1 TO SECTION 153, INSERTED BY FINANCE ACT, 2008, W.R .E.F. 01.06.2007, THE ASSESSMENTS WOULD GET TIME BARRED IN SOME CASES , I.E., U/S. 153 R/W S. 245HA. THE MOOT QUESTION THEREFORE IS WHETHER THE SAID PROVISO SHALL SAVE THE LIMITATION. THE SAME READS AS UNDER: TIME PERIOD FOR COMPLETION OF ASSESSMENTS AND REAS SESSMENTS. 153. (1) TO (4) ......... EXPLANATION 1 .. (I) TO (IX) ............ PROVIDED .. PROVIDED FURTHER THAT WHERE A PROCEEDING BEFORE THE SETTLEMENT COMMISSION ABATES UNDER SECTION 245HA, THE PERIOD O F LIMITATION AVAILABLE UNDER THIS SECTION TO THE ASSESSING OFFICER FOR MAK ING AN ORDER OF ASSESSMENT, REASSESSMENT OR RE-COMPUTATION, AS THE CASE MAY BE, SHALL, AFTER THE EXCLUSION OF THE PERIOD UNDER SUB-SECTION (4) O F SECTION 245HA, BE NOT LESS THAN ONE YEAR; AND WHERE SUCH PERIOD OF LIMITA TION IS LESS THAN ONE YEAR, IT SHALL BE DEEMED TO HAVE BEEN EXTENDED TO ONE YEA R; AND FOR THE PURPOSES OF DETERMINING THE PERIOD OF LIMITATION UNDER SECTIONS 149, 153B, 154, 155, 158BE AND 231 AND FOR THE PURPOSES OF PAYMENT OF IN TEREST UNDER SECTION 243 OR SECTION 244 OR, AS THE CASE MAY BE, SECTION 244A, THIS PROVISO SHALL ALSO APPLY ACCORDINGLY. WE SEE NO REASON WHY IT SHALL NOT; THERE BEING NO A MBIGUITY IN THE LANGUAGE OF THE PROVISO , WHICH EXTENDS THE PERIOD OF LIMITATION, MAKING A TIME PERIOD OF ONE YEAR AVAILABLE TO THE AO FOR COMPLETION OF ASSESSME NT IN ALL CASES WHERE THE 6 PROCEEDINGS BEFORE THE HON'BLE SETTLEMENT COMMISSIO N ABATE. THE LEGISLATIVE COMPETENCE OF THE PARLIAMENT FOR LEGISLATING RETROS PECTIVE AMENDMENTS, OR FOR GIVING RETROSPECTIVE EFFECT TO AN AMENDMENT PASSED BY IT, IS NOT IN QUESTION THE GROUNDS ONLY ALLEGE THE ASSESSMENT/S TO BE TIME BAR RED U/S. 153 R/W. S. 245HA. IT IS, IN FACT, DOUBTFUL IF IT COULD BE SO BEFORE THIS APPELLATE FORUM. THE TIME LIMITATION WORKED OUT BY THE ASSESSEE IS ONLY BY FOLLOWING OR GIVING EFFECT TO THE PROVISIONS OF LAW. PROVISO TO EXPLANATION 1 TO S. 153 AFORE-REFERRED CANNOT BE EXCLUDED FROM THE STATUTE, FORM AS IT DOES AS MUCH A PART THEREOF AS DO THE OTHER PROVISIONS OF THE STATUTE. IT WOULD BE A DIFFERENT MATTER IF THE LIMI TATION HAD EXPIRED PRIOR TO THE DATE FROM WHICH THE AMENDMENT WAS MADE RETROSPECTIVE, AS , FOR EXAMPLE, 01.12.2007 (SAY), AS INDEED WAS THE CASE IN S.S. GADGIL V. LAL & CO. [1964] 53 ITR 231 (SC), RELIED UPON BY THE ASSESSEE BEFORE US. IN THE FACTS OF THAT CASE, SEC. 18 OF THE FINANCE ACT, 1956 WAS GIVEN A LIMITED RETROSPECTIVE OPERATION, I.E., UP TO 01.04.1956. THE RIGHT TO COMMENCE ASSESSMENT ON THE ASSESSEE (AS AN AGENT OF THE NON-RESIDENT) FOR AY 1954-55, HOWEVER, ENDED ON MAR CH 31, 1956. THE HON'BLE COURT EXPLAINED THAT THE PROVISION HAD TO BE READ S UBJECT TO THE RULE THAT IN THE ABSENCE OF AN EXPRESS PROVISION OR CLEAR IMPLICATIO N, THE LEGISLATURE DID NOT INTEND TO ATTRIBUTE TO THE AMENDING PROVISION A GREATER RE TROSPECTIVITY THAN WHAT WAS EXPRESSLY MENTIONED, OR TO AUTHORISE INCOME-TAX OFF ICER TO COMMENCE PROCEEDINGS, WHICH BEFORE THE NEW ACT CAME INTO FORCE HAD, BY THE EXPIRY OF THE PERIOD PROVIDED, BECOME BARRED . THE NOTICE DATED MARCH 27, 1957 WAS, THEREFORE, H ELD AS INVALID. TO THE SAME EFFECT IS THE DECISION IN THE CASE OF ITO V. INDUPRASAD DEVSHANKAR BHATT [1969] 72 ITR 595 (SC). IN THE PRESENT CASE, THERE IS NO DOUBT THAT THE AMENDMENT TAKES EFFECT FROM 01.06.2007, ON WHICH DATE NO ASSESSMENT HAD EXPIRED, I.E., BECOME BARRED BY TIME. THIS IS AS THE TIME AVAILABLE WITH THE ASSESSEE FOR MAKING PAYMENT, SAVING ABATEMENT OF THE PROCEED INGS BEFORE THE HON'BLE SETTLEMENT COMMISSION, WAS ITSELF UP TO 31.07.2007, AND WHICH PERIOD IS TO BE EXCLUDED IN RECKONING LIMITATION (S.245HA(4)). THE S AID DATE IS THUS ALSO THE SPECIFIED DATE U/S. 245HA(1), I.E., FROM WHICH DA TE, FAILING PAYMENT, THE PROCEEDINGS ABATE. THE AMENDMENT TO S. 153 WOULD TH US ENABLE A PERIOD OF ONE 7 YEAR FROM THE SAID DATE, EVEN AS POINTED OUT BY THE LD. CIT(A). THE SAID DECISIONS, AS ALSO OTHERS, RELIED UPON BY THE ASSESSEE, WOULD THUS HAVE NO APPLICATION IN THE FACTS AND CIRCUMSTANCES THE CASE. THE CITED DECISIO N - S.S. GADGIL (SUPRA) IN FACT SUPPORTS THE REVENUES CASE IN-AS-MUCH AS WE ARE NO T EXTENDING THE RETROSPECTIVITY BEYOND THE PERIOD PROVIDED BY THE AMENDING ACT. THE MATTER IN VIEW OF THE POSITIVE/ AFFIRMATIVE LANGUAGE, LEAVING NO SCOPE FO R DRAWING AN INFERENCE, CAN BE SAID AS SETTLED IN VIEW OF THE DECISION IN CIT V. ONKARMAL MEGHRAJ [1974] 93 ITR 233 (SC), WHEREIN IT STANDS CLARIFIED BY THE APEX C OURT THAT THE ACTION OF THE AO WOULD BE VALID HAD THE LIMITATION NOT EXPIRED PRIOR TO APRIL 1, 1952, UP TO WHICH DATE ONLY THE SECOND PROVISO TO SEC. 34(3) WAS GIVEN RETROSPECTIVE EFFECT. 3.2 IT WAS ARGUED BEFORE US THAT THE PRESIDENTIAL A SSENT TO THE AMENDING ACT WAS RECEIVED LATER, I.E., ON 10/5/2008. AND, THAT, THER EFORE SUCH ENLARGEMENT OF PERIOD, SUBSEQUENT TO THE EXPIRY OF TIME LIMITATION IS OUTS IDE THE LEGISLATIVE COMPETENCE. WE HAVE ALREADY EXPRESSED OUR LIMITATION ON OUR COM PETENCE TO TRAVEL TO THE VIRES OF A PROVISION OF THE ACT OR THE LEGISLATIVE COMPET ENCE OF THIS TRIBUNAL. IN FACT, WE DO NOT THINK IT IS REQUIRED TO; THE LAW IN THE MATT ER OF RETROSPECTIVITY BEING WELL SETTLED BY THE APEX COURT. THE DECISIONS IN THE CASE OF S.S. GADGIL (SUPRA) AND ONKARMAL MEGHRAJ (SUPRA) ITSELF CLARIFY THAT BUT FOR THE LIMITED RE TROSPECTIVITY, THE JURISDICTION OF THE ASSESSING AUTHORITY TO ASSE SSEE COULD NOT BE CHALLENGED. T HE ONLY ISSUE THAT WE DISCERN AS RELEVANT IS WHETHE R THE AMENDING ACT IS, OR IS NOT, TO BE GIVEN A RETROSPECTIVE EFFECT, AND WHICH WE HA VE FOUND NO REASON NOT TO, WITH THE AMENDMENT EXPRESSLY PROVIDING SO. IN THE CONTIN UUM OF THE PROCESS OF LAW MAKING, THE PRESIDENTIAL ASSENT MARKS ITS CULMINATI ON. WHY, THE FINANCE ACT IS ITSELF PASSED ONLY SUBSEQUENTLY, I.E., SUBSEQUENT T O THE DATE FROM WHICH THE LAW IS TO HAVE EFFECT. IT WAS PERHAPS REALIZED THAT ON ACCOUNT OF DELAYS I N ITS COMMUNICATION, INFORMATION AS TO ABATEMENT OF THE PROCEEDINGS BEFO RE THE HONBLE COMMISSION, SO THAT THEY WERE OBLIGED TO PROCEED IN THE MATTER (S. 245HA(2)), ITSELF REACHED THE AOS AFTER A TIME LAG, EVEN AS THE SAID ABATEMENT, B Y THE OPERATION OF LAW 8 (S.245HA(1)), FOLLOWS IN CONSEQUENCE OF THE FAILURE ON THE PART OF THE ASSESSEE TO MAKE THE PAYMENT BY THE SPECIFIED DATE. THIS WOULD LEAVE LITTLE OR NO TIME FOR THE AOS TO FRAME ASSESSMENTS, OR MAY EVEN REACH THEM AF TER THE LAPSE OF THE LIMITATION PERIOD, AS WAS INDEED THE CASE IN THE INSTANT CASE; THE LIMITATION EXPIRING ON 01.11.2007, WHILE THE ORDER BY THE SETTLEMENT COMMI SSION WAS PASSED ONLY ON 31/1/2008, SO THAT IT WOULD STAND CONVEYED TO THE A O EARLIEST BY THAT DATE. WHY, WE OBSERVE NO SUCH ORDER BEING CONTEMPLATED, THOUGH IS YET PROCEDURALLY ESSENTIALLY TO CONVEY THE FACT OF NON-PAYMENT (BY A N ASSESSEE) TO THE AO, AS WELL AS FOR HIM TO TAKE COGNIZANCE THEREOF. IN OTHER WORDS, THE AMENDMENT ONLY SEEKS TO PROVIDE A REASONABLE TIME TO THE AOS TO PASS ORDERS , WHICH MAY OTHERWISE NOT BE AVAILABLE TO THEM . THERE IS NO QUESTION OF ANY VESTED RIGHT GETTING, BY VIRTUE OF THE AMENDMENT, DIVESTED, AS SOUGHT TO BE ARGUED BY PLAC ING RELIANCE ON CIT V. SHAH SADIQ & SONS [1987] 166 ITR 102 (SC). THERE IS, AS IS TRITE LAW, NO VESTED RIGHT AGAINST PROCEDURE. IN FACT, PROCEDURAL LAW IS APPLI CABLE TO ALL PENDING PROCEEDINGS ( CWT V. SHARVAN KUMAR SWARUP & SONS [1994] 210 ITR 886 (SC), ITSELF IMPLYING THAT NO RIGHTS GET DIVESTED IN THE PROCESS. THE ISSUE CAN HARDLY BE TERMED AS AT LARGE, AND IS IN OUR VIEW NO LONGER RES INTEGRA . AS EXPLAINED IN B.M. SHIVAKUMAR V. STATE OF KARNATAKA [1996] 222 ITR 223, 241-42, THAT IT WAS FALLACIOUS TO SAY THAT ON THE EXPIRATION OF THE PERIOD OF LIMITATION PRESC RIBED UNDER A FISCAL STATUTE FOR COMPLETION OF ASSESSMENT OR REASSESSMENT, THE ASSES SEE ACQUIRED A VESTED RIGHT OF NOT BEING LIABLE TO BE ASSESSED THEREAFTER AND THE LEGISLATURE CANNOT TAKE AWAY THAT RIGHT. IT GOES ON TO SAY THAT THE PERIOD OF TIME PRESCRIBED UNDER SUCH STATUTES IS A PART OF THE ASSESSMENT MACHINERY AND DOES NOT CREAT E ANY EXEMPTION. IT MERELY CREATES A FETTER ON THE POWER OF THE ASSESSING AUTH ORITY TO UNDERTAKE OR COMPLETE THE PROCESS OF ASSESSMENT ON THE EXPIRY OF SUCH PERIOD( S). BUT SUCH A PERIOD CAN ALWAYS BE EXTENDED BY THE LEGISLATURE, EITHER BY EXP RESS OR BY CLEAR IMPLICATION, TO BE CULLED OUT FROM THE PROVISIONS OF THE STATUTE. THEREFORE, THE LEGISLATURE IS COMPETENT ENOUGH TO LIFT THE TIME FETTER PLACED ON THE ASSESSING AUTHORITY FOR COMPLETION OF ASSESSMENT BY ENLARGING THE SAME EVEN AFTER THE EXPIRY OF THE PERIOD . SUCH LEGISLATIVE EXERCISE CANNOT BE SAID TO BE BAD EITHER ON THE GROUND OF 9 INCOMPETENCE OR IN ANY WAY UNREASONABLE OR ARBITRAR Y, OFFENDING ANY OF THE CONSTITUTIONAL PROHIBITIONS. TO THE SAME EFFECT AND IN SUBSTANCE IS THE DECISION IN THE CASE OF CIT V. RAJA MOHD. MUSTAFA ALI KHAN [1977] 109 ITR 710 (ALL), ALSO RELIED UPON BY THE REVENUE. THE DECISION IN RAJENDRA KUMAR VERMA V. DGIT (INV). [2012] 345 ITR 32 (ALL) WOULD AGAIN BE OF LITTLE RE LEVANCE. THE NON- COMMUNICATION OF THE INFORMATION (AS TO ABATEMENT) TO THE AO COULD NOT BE A RELEVANT FACTOR, AS INDEED POINTED OUT BY THE HONB LE HIGH COURT. IN FACT, THE LAW DOES NOT ACCORD ANY SIGNIFICANCE TO THE SAID DATE A ND EXTENDS THE PERIOD OF LIMITATION INDEPENDENT OF IT. THE DATE ON WHICH THE PROCEEDINGS ABATE, BY THE OPERATION OF LAW, IS ONLY RELEVANT AND TAKEN INTO R ECKONING IN WORKING THE REVISED LIMITATION. IN THE FACTS OF THAT CASE THE AO DID NO T PASS THE ASSESSMENT ORDER WITHIN THE EXTENDED LIMITATION, I.E., 31/3/2009. ALL THAT WE HAVE SAID EARLIER IS THAT THE PROCEDURE INVOLVED, ENTAILING TIME, WOULD HAVE PERH APS LED TO THE AMENDMENT, WHICH THOUGH IS TO BE READ ON ITS TERMS. IT NEEDS TO BE APPRECIATED THAT ALL THE DECISIONS B Y THE HIGHER COURTS REFERRED TO OR RELIED UPON, THE RIGHT TO FRAME ASSESSMENT OR TO COMMENCE ASSESSMENT PROCEEDINGS HAD ALREADY EXPIRED BEFORE THE DATE ON WHICH THE NEW (AMENDED) LAW CAME INTO FORCE. THE DECISION IN SHYAM SUNDER & ANR. V. RAM KUMAR & ANR . (CIVIL APPEAL NO. 4680 OF 1993 (REPORTED AT CDJ 200 1 SC 413) ALSO SUPPORTS THE REVENUES CASE. IN THE FACTS OF THAT CASE, NO RETRO SPECTIVE EFFECT WAS GIVEN TO THE AMENDING ACT, WHICH EFFECT WAS SOUGHT TO BE PLACED BY RELYING ON THE RULE OF BENEVOLENT CONSTRUCTION, WHICH DID NOT FIND APPROVA L OF THE APEX COURT, AS IT DID NOT FIND IT EITHER EXPRESSLY MENTIONED OR BY NECESS ARY INTENDMENT; IT FINDING NOTHING THEREIN TO REGARD IT AS EITHER DECLARATORY OR EXPLANATORY. THE PROVISION HAS BEEN MADE EXPRESSLY RETROSPECTIVE IN THE PRESENT CA SE . FURTHER, THE DECISION IN GLOBAL BUILDERS & DEVELOPERS V. ITSC [2009] 309 ITR 167 (BOM), ALSO RELIED UPON, HAS SURELY NOTHING TO DO WITH THE RETROSPECTI VITY OF ANY PROVISION, MUCH LESS THE SECOND PROVISO TO EXPLANATION 1 TO SECTION 153. 10 3.3 THE ASSESSEES CASE, IN VIEW OF THE FOREGOING, I S WHOLLY WITHOUT MERIT. INDEED, THE LD. COUNSEL WOULD ADMIT THAT IN SOME AP PEALS THE ASSESSMENTS ARE NOT TIME BARRED EVEN WITHOUT RECOURSE TO THE SAID PROVISO , DETAIL OF WHICH HE WOULD SUBMIT LATER, BUT DID NOT. THIS, THOUGH, WOULD NOT B E OF ANY MOMENT AS WE ARE DECIDING AN ISSUE ON PRINCIPLE, SO THAT IT WOULD HA VE APPLICATION ONLY WHERE THE FACTS ADMIT IT. FOR THE BALANCE APPEALS, THE ASSESS EE IN FACT ADMITS TO BE HAVING NO CASE AT ALL. WE DECIDE ACCORDINGLY, AND THE ASSESSE E FAILS. 4. IN THE RESULT, ALL THE APPEALS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON JANUARY 2, 20 17. SD/- SD/- D/- (PAWAN SINGH) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED: 02/01/2017 EDN, SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/