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Habib and Sons Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai
Decided On
Case NumberIncome-tax Reference No. 4 of 1946
Judge
Reported in(1947)49BOMLR200
AppellantHabib and Sons
RespondentCommissioner of Income-tax
Excerpt:
income-tax and excess profits tax (validity of notices) ordinance xlv of 1944-income-tax and excess profits tax (validity of notices) (amendment) ordinance 1945-government of india act, 1935 (26 geo. v, c. 42), schedule ix, section 72-governor general-power to promulgate ordinances-retrospective effect-intra vires-' deemed to be,' effect of.;the income-tax and excess profits tax (validity of notices) ordinance, 1944, and the income-tax and the excess profits tax (validity of notices) (amendment) ordinance, 1945, promulgated by the governor general in the exercise of his emergency powers under section 72 of the ninth schedule to the government of india act, 1935, are valid. .;emperor v. prabhakar kondaji bhapkar, (1943) 46 bom. l.r. 50, f.b. followed.;deeming a past event or tiling to be..........& co. (1944) 47 bom. l.r. 181 it was held that a notice given pursuant to section 22(2) of the indian income-tax act, which requires an assessee to make his return 'within 30 days', was not a compliance with the sub-section and was an invalid notice. thereafter, in order to validate all the income-tax notices given in the form referred to in that case, the governor general in exercise of his emergency powers under section 72 of the ninth schedule of the government of india act promulgated two ordinances upon which the titles were bestowed of the 'income-tax and excess profit tax (validity of notices) ordinance, 1944' and 'the income-tax and the excess profits tax (validity of notices) (amendment) ordinance 1945,' the conjoint effect of these two ordinances is stated to be thatfor the.....
Judgment:

Leonard Stone, Kt., C.J.

1. This reference made to us under Section 66(1) of the Indian Income-tax Act, 1922, raises a very short point. By a decision of this Court, Commissioner of Income-Tax v. Ekbal & Co. (1944) 47 Bom. L.R. 181 it was held that a notice given pursuant to Section 22(2) of the Indian Income-tax Act, which requires an assessee to make his return 'within 30 days', was not a compliance with the sub-section and was an invalid notice. Thereafter, in order to validate all the income-tax notices given in the form referred to in that case, the Governor General in exercise of his emergency powers under Section 72 of the Ninth Schedule of the Government of India Act promulgated two Ordinances upon which the titles were bestowed of the 'Income-tax and Excess Profit Tax (Validity of Notices) Ordinance, 1944' and 'the Income-tax and the Excess Profits Tax (Validity of Notices) (Amendment) Ordinance 1945,' the conjoint effect of these two Ordinances is stated to be that

For the removal of doubts, it is hereby enacted that every notice published or issued, whether before or after the commencement of this Ordinance, but not later than the 19th of May 1945 'then, so far as material to this case,' under Sub-section (2) of the said section, or under Sub-section (1) of Section 34 of the said Act, requiring a return to be furnished within thirty days of the receipt of the notice, shall, notwithstanding any judgment or order of any Court, Appellate Tribunal or Income-tax authority to the contrary, and whether or not any specified date on or before which the return is to be furnished is or has been given in the notice as an alternative, be deemed to give or have given a period of notice in full compliance with law;

and the Ordinance goes on to provide that no such notice shall be called in. question by any Court.

2. Sir Jamshedji Kanga, on behalf of the assessee, has submitted that the Governor General in the exercise of his emergency powers cannot promulgate a law which is either retrospective or retroactive in its effect, and he points out that although that question was adumbrated in a decision of the Federal Court, King Emperor v. Sibnath Banerjee [1944] F.C.R. 1 no decision was made upon it. However, there is a full bench decision of this High Court, which is directly in point, and which is indistinguishable, Emperor v. Prabhakar Kondaji Bhapkar (1943) 46 Bom. L.R. 50 In that case the learned Chief Justice Sir John Beaumont said (p. 52) :

It is argued, in the first instance, that that Ordinance goes beyond the powers of the Governor General under Section 72 of the Ninth Schedule to the Government of India Act. But there is really no substance in that point. Under that section the Governor General may, in cases of emergency, make and promulgate Ordinances for the peace and good government of British India or any part thereof, any Ordinance so made shall, for the space of note more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature.

And my brother Chagla in his judgment said (p. 54) :

There is no doubt that the Indian Legislature has the power to amend Acts passed by itself, nor can there be any doubt that the Indian Legislature can pass retrospective legislation. If the Indian Legislature has those powers, I do not think it is open to argument that the Governor General has not similar powers under Section 72 of the Government of India Act, 1919.

3. With respect, I entirely agree. This reference must therefore be answered in the affirmative on that point. But apart from the question of legislative power, I do not read the Ordinances as retrospectively changing any law. The material words are, that, 'every notice published or issued', under the subsections therein mentioned 'shall be deemed to give or to have given a period of notice in full compliance with law'. 'Deeming' a past event or thing to be something other than what it was or is, may be an interference with the course of nature, since it creates artificial data in the place of existing fact. But it is not in my opinion a restrospective, changing of the statute law and that is the only law we are concerned with in this case.

4. The assessee must pay the costs.

Chagla, J.

5. I agree and have nothing to add.

6. Per Curiam. Certificate granted under Section 205 of the Government of India Act.


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