Case Law Details
RELEVANT PARAGRAPH:
38. First and foremost rule of construction of interpretation is that in the absence of anything in the enactment to show that it is to have retrospective operation, the said enactment cannot be construed to have retrospective operation and when amendment relates to a procedural provision results into creating a new disability or obligation and which imposes new duty in respect of transactions already completed, then, the said procedural provision also cannot be applied retrospectively. Similar is the position where a statute which not only changes the procedure, but also creates a new rights and liabilities which shall be construed to be prospective in operation unless otherwise provided either expressly or by necessary implication.
39. Now, we proceed to examine that whether section 292-BB can be construed to be retrospective in the light of the above principles. It is also observed that Section 292-BB has been made effective by the legislature from 1st April, 2008 and there is nothing in the enactment to show that Section 292-BB has retrospective operation. If it is so, according to Rule of Interpretation described above, Section 292-BB cannot be construed retrospectively.
40. According to above mentioned principles laid down by the Hon’ble Supreme Court, every litigant has a vested right in substantive law, but no litigant has such right in procedural law. No doubt, issue and service of notice though may relate to procedural law, but where procedural statute creates a new disability or obligation and imposes new duties in respect of transactions already accomplished, then the statute cannot be construed to have retrospective effect.
41. It has already been pointed out that issue and service of notice in the manner prescribed by the statute has played a vital role in determining the validity or otherwise of assessment/re- assessment and other proceedings under the Act and where the courts have found defect either in the notice or in its proper service, the validity of assessment/re- assessment and other proceedings have been struck down by the Courts subject, of course, to Section 292B of the Act introduced w.e.f. 1.10.1975. Thus, to challenge the validity of a particular action of the Department of making assessment or re-assessment on the basis of invalidly issuance/service of notice had become right of litigant assessee during the course of appellate proceedings even though such contention was never raised during the course of assessment proceedings. Instances of striking down the validity of assessment and re-assessment proceedings have already been discussed in the earlier part of this order. By insertion of Section 292-BB such right of the assessee to challenge the validity of assessment or re-assessment proceedings during the course of appellate proceedings has been taken away by the statute w.e.f. 1.4.2008. It is also observed that the issue and service of notice relates to procedural law, but, at the same time, it created a new disability on the assessee litigant to the extent that he is debarred from taking a plea in the appellate proceedings to challenge the validity of the same on the ground of valid issuance/service of notice required to be given by the statute in a case where assessee has appeared in such proceedings or cooperated in the inquiry relating to assessment or re-assessment. Therefore, applying the above principles of interpretation and keeping in view above discussion it has to be held that Section 292-BB cannot be construed to have retrospective operation and it has to be applied prospectively.
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Very HELPFUL & FAVOURABLE Decision but temporary.
Dept. will go in further Appeal.
So, WAIT & WATCH