J. P. JANI, INCOME-TAX OFFICER, CIRCLE IV, WARD-G, AHMEDABAD & ANR. versus INDUPRASAD DEVSHANKAR BHATT

Citation: [1969] 1 S.C.R. 714 · Decided: 20-08-1968 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Dismissed

Judgment (excerpt)

7 I 4 
J. P. JANI, INCOME-TAX OFFICER, CIRCLE IV, 
A 
WARD·G, AHMEDABAD & ANR. 
v. 
INDUPRASAD DEVSHANKAR BRA TT 
.1 ugust 20, 1968 
[J. C. SHAH, .V. JlAMASWAM! ASO A. N. GROVER, JJ.) 
/ncom•-tax Act (43 o/ 1961). ss. 148 and 297 (2)(d)(ii)-Right of 
ltu:onJe-J'ax Officer to reopen assessment under s. 34 of the Income-tax 
Act, 1922, barred on the date of commencement of thl! 
1961 
Act--
JVherher notice under s. 148 to reopen assessment rould be issued. 
Under s. 297(2) (d) (ii) Of the Income.tax Act, 1961. dealing with 
repeals and sa\ings, notwithstanding the repeal of the 1922-Act, where 
in r""pect of any assc&smcnt year afte'r the year ending on 31st day of 
March. 1940. any income had escaped assessment and no proe<>edings 
under s. 34 of the repealed Act are pending at the commencement of the 
1961-Act, a notice under s. 148 of the 1961-Act may be issued 
for re-
opening the assessment. 
'fhe respondent was 
a~sesscd to income-tax for the assessment year 
1947~8. 
Thereafter the Income-Tax Officer issued a notice under s. 
34( 1) (a) of the Income-tax Act, 1922, for reassessment. There was no 
proper 5crvice of the notice, and despite the respondent's objection, the 
Income-tax Officer determined the total income o'f the re;pondcnt at Rs. 
~9.000. 
The Appellate Assistant Commi&•ioner allowed 
the 
resnon-
dent"s appeal by order dated 5th January. 1963 on the ground that there 
was no valid service of the notice. 
On 1st April, 
1962 the 
1922-Act 
was repealed and the Income-tax Act, 1961 came into force, and the time 
for taking action for reassessment wa~ enlarged from 8 years to 16 years. 
By that date, the right of the Income-Tax Officer to reopen the assessment 
under s. 34( 1) (a) of the 1922-Act became 
barred. 
The 
Income-Tax 
Officer however, issued a notiec under s. 148 of the 1961 Act for reopen-
ing the a~essment. llle respondent, thereupon tiled a 
v.Tit 
petition 
in 
the High Court for quashing the notice and the petition was allowed. 
In appC'.al to this Court. 
B 
c 
D 
E 
F 
• 
HELD: On a proper construction of s. 297(2) (d) (ii) the Jncome-
Tax Officer cannot issue a notiee under s. I 48 
in order to reopen the 
assessment of an assesscc in a case where the right to reopen the assess-
ment under the 1922-Act was barred at the date when the 1961-Act came 
into force. The reason is that unless the statute expressly so provides or 
G 
there is a necessary implication, retrospcc!ive operation should not be given 
to it ~o as to affect, alter or destory any right aJrcadv acquired or to revive 
any remedy already lost by efflux of time. 
The 1961-Act docs not dis-
close in express tehns or by ne.ccssary implication that there was a. re\ival 
of rhc right of the Income-Tax Officer to reopen an as..o;essmcnt which '\lo'as 
already barred under the 1922-Act and if the secti?r:i is .construed .as 
reviving such a right ir would be tantamount to 
g1v1ng 
It retrospcctl~e 
H 
operation which is not warranted hy its lcinguag,e. 
The words 'v.·hcre in 
respect of any aS'.'icssment year afler the year ending 
on 31st 
day 
of 
~farch. 1940,' in the section. cannot take in their sweep all 
asses..~ment 
years subsequent to the year ending on 31st March, 1940 without regam 
I.T .o. v. INDUPRASAD ( Ramaswami, J.) 
715 
A . to the question whether the right to reopen the assessment in respect of 
any assessment year was or was not barred under the repealed Act: 
The 
section must be read as applicable orrly to those cases where the nght of 
the Income-Tax Officer to reopen the assessment was not barred under 
the repealed section. [720 H; 721 A-D; 722 G-H] 
S. S. Gadgil v. Lal & Co. (1964) 53 I.T.R. 231 (S.C.), followed. 
B 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 972 of 
1967. 
Appeal from the judgment and order dated December 14, 15, 
1964 of the Gujarat High Court in Special Civil Application No. 
54 of 1964. 
C 
D. Narsaraju, S. K. Aiyar, S. P. Nayar ~dB. D. Sharma, for 
the appellants. 
S. T. Desai, M. C. Bhandare and K. Rajendra Chaudhuri, for 
the respondent. 
· 
The Judgment of the Court was delivered by 
D . 
Ramaswami, J. This appeal is brought by certificate against 
E 
F 
G 
H 
the judgment of the Gujarat High Court dated 14th/15th 
December 1964 in Special Civil Application No. 54 of 1964 
whereby a writ of mandamus was issued to quash the notices 
issued under sections 147, 148 and 142(1) of the Income Tax 
Act, 1961 against the respondent. 
The respondent was assessed by the Income Ta

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