Retrospective Amendmend

nThe retrospectivity and prospectivity of the statute has been considered by Hon'ble Supreme Court in number of recent judgments, vide., (2008) 1 SCC 188 (Jaswant Talkies. Vs. Commercial Taxes Officer, Bhilwara); JT 2009 (9) SC 306 (High Court of Delhi Vs. A.K. Mahajan and others); JT 2009 (9) SC 386 (M/s Shakti Tube Ltd. Vs. State of Bihar); 2910 (2) SCC 422 (Union of India and another. Vs. Kartick Chandra Mondal and another), held that in case, statute expressly itself not made it operative retrospectively, it shall operate prospectively.

nA provision is retrospective when it takes away a right which has vested or accrued in the past.

nHon‟ble Supreme Court in the case of Keshavan  Madhava Menon vs. State of Bombay, AIR 1951 SC 128 every statute is prima facie prospective operation. This rule is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. In the words of Lord Balnesburg, “provisions which touch a right in existence at thepassing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment”.

nKaran Bihar Thapar Delhi High Court: We do not see how the amendment could be held to be clarificatory, as the residential status of an assessee determines the assessee‟s tax burden. Therefore, the  amendment can be held only as substantive in nature and cannot be given retrospective effect

Reopening through Retrospective Amendmend

nM/s.K. Mohan & Co. (Exports) (Regd.) INCOME TAX APPEAL (L) NO.2347 OF 2010: If the legislature amends the provisions of the Act with retrospective effect, it cannot be said that there was failure on the part of the assessee to disclose fully and truly all material facts relevant for the purpose of assessment. (Bombay High Court) (Weizmann Limited; Voltas  15 February 2012. order)

nIt cannot be said that the retrospective amendment to Section 115 JB of the Act, constitutes failure on the part of the assessee to disclose fully and truly all material facts. (WRIT PETTION NO.2323 OF 2010 Bombay High Court  B. Arunkumar Capital)

nHon’ble Supreme Court in the case of CIT vs Max India Ltd 295 ITR 282(SC), he submitted that the Hon’ble Apex Court in the said decision in a 263 matter has held that subsequent amendment even though retrospective will not attract the provisions of section 263.

nRetrospective amendment not available on reasons recorded date would not save reopening) IOT Infrastructure 235 CTR 313

n

Rectification for retrospective Amendmend

nITO vs Bombay Dyeing& Mfg Company Ltd reported in 34 ITR 143(SC) : Held possible