N. T. John Vs. Commissioner of Income Tax and anr. - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. section 100-a [as substituted by c.p.c. amendment act, 2002]: [v.k. bali, cj, kurian joseph & k. balakrishnan nair, jj] applicability held, section is not retrospective. all appeals filed prior to 1.7.2002 are competent. but subsequent to 1.7.2002 intro court appeals against judgment of single judge is not maintainable. provisions of section 100-a, c.p.c., will prevail over the provisions contained in the kerala high court act, 1959. p. a. mohammed, j. :the subject-matter of this writ petition relates to search conducted under s. 132 of the it act, 1961. the search was conducted on 23rd feb., 1996. this writ petition has been filed praying for a direction to quash ext. p4 notice and all proceedings to complete the petitioners assessment for the year 1993-94 and for a direction on 2nd respondent to issue notice under s. 158bc for the block period involved in the search and seizure.2. heard learned counsel for the petitioner and also the standing counsel sri n. r. k. nair for respondents 1 and 2.3. the crucial question involved in this writ petition is whether the search and seizure conducted on 23rd feb., 1996 is governed by the provisions contained in chapter xiv-b which prescribe special procedure for assessment of search cases. sec. 158ba contained in the said chapter deals with assessment of undisclosed income as a result of search. sub-s. (1) of the said section is as follows :'notwithstanding anything contained in any other provisions of this act, where after the 30th day of june, 1995 a search is initiated under s. 132 or books of account, other documents or any assets are requisitioned under s. 132a in the case of any person, then, the ao shall proceed to assess the undisclosed income in accordance with the provisions of this chapter.'chapter xiv-b was inserted in the it act, 1961 by the finance act, 1995 w.e.f. 1st july, 1995. it is an admitted case that the search was conducted in this case under s. 132 of the act and that it was on 23rd feb., 1996. that means chapter xiv-b as it stood now would apply in the present case. earlier chapter xiv-b was inserted by the direct tax laws (amendment) act, 1987 w.e.f. 1st april, 1989. it dealt with altogether a different subject namely, charge of additional income-tax in certain cases. it was omitted by the direct tax laws (amendment) act, 1989. therefore, what is contained in the present chapter is not a substituted procedure for assessment of search cases.4. normally a change in the law of procedure operates retrospectively. in this case there is no change of procedure, but a special procedure is provided. sec. 158ba will not apply in a case where a search is initiated under s. 132 before 30th day of june, 1995, the date on which the finance act, 1995 came into force. in that view, it cannot be said that chapter xiv-b has retrospective operation. at the same time, the definition of block period contained in s. 158b indicates that it operates for a preceding period of ten years from the year in which the search was conducted.block period means the period of ten previous years preceding the previous year in which the search was conducted under s. 132 or any requisition was made under s. 132a. the search in this case was conducted during the previous year 1995-96. therefore, the asst. yr. 1993-94 is one of the ten previous years contemplated in s. 158b. in other words, in respect of the year 1993-94, special procedure prescribed in chapter xiv-b is applicable. thus, the contention advanced on behalf of the revenue cannot be countenanced.5. however, as an interim measure this court in cmp no. 21095 of 1996 ordered that the assessment order shall be completed for the year 1993-94 and it shall be kept in abeyance as if it has not been passed. as against this the petitioner filed writ appeal no. 1027 of 1996. that writ appeal was dismissed by the division bench. counsel on both sides now uniformly submit that the notice was already issued to the petitioner under s. 158bc. that means the procedure laid down in chapter xiv-b is put in motion by the department against the petitioner. under s. 158bc it is imperative to issue a notice to the person against whom search has been conducted under s. 132 for the purpose of block assessment. the ao, on determination of the undisclosed income of the block period, shall pass an order of assessment within a period of one year from the end of the month in which the last of the authorisations for search under s. 132 was executed. it is an admitted case that the assessment for the year 1993-94 was also included in the notice under s. 158bc for the purpose of block assessment.6. what remains to be examined in this case is as to how the assessment order for the year 1993-94 passed by the respondents pursuant to the interim order of this court dt. 29th july, 1996 should be dealt with. it is pointed out that the said assessment order was passed on the ground that the assessment for the said year was otherwise getting barred. since admittedly the asst. yr. 1993-94 is also included in the notice already issued by the department for the purpose of block assessment, i do not think it proper to keep alive ext. p4 and subsequent assessment passed thereof. i am fortified in taking this view because if ext. p4 and the consequent assessment order for the year 1993-94 is kept alive, the department will find it difficult to pass a parallel order in respect of the said year under s. 158bc. therefore, in order to augment the proceedings under s. 158bc, i think it would be appropriate to quash ext. p4 and the consequent assessment passed for the year 1993-94. i do so.7. the first prayer made in the writ petition is thus allowed. the second prayer has become infructuous since the department has already issued notice under s. 158bc for the assessment block period including the year 1993-94 as stated above. the original petition is disposed of as above.