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PETITIONER: ADDL. COMMISSIONER (LEGAL) & ANR.

       Vs.

RESPONDENT: M/S. JYOTI TRADERS AND ANR.

DATE OF JUDGMENT:       20/11/1998

BENCH: K. VENKATASWAMI, & D.P. WADHWA.

JUDGMENT:

--------

D.P. Wadhwa, J. --------------

       Leave granted.

       In both these appeals which are against two separate judgement of the same Division Bench of the  Allahabad  High Court,  a  common  question of law arises. It is that in the circumstance could a completed  assessment  under  the  U.P. Sales Tax Law be re-opened  after the prescribed period when that period was enlarged by amending the law.

       Facts are similar.

       In the appeal of Lohia Machines Limited (arising out of  SLP  (c)  No.  11015  of  1997)  assessment for the year 1985-86 under the UP Trade Tax Act,  1948  (for  short  ’the Act’)  was  completed  on November 27, 1989. The Act is also called the U.P. Sales  Tax  Act.  In  the  appeal  of  Jyoti Traders  (arising out of SLP(c) No. 8866 of 1997) assessment for the year 1985-86 was completed  on  February  28,  1990. Period  for assessment or re-assessment, which is four years under section 21 of the Act, for the assessment year 1985-86 expired, on March 31, 1990.

       The  Act was extensively amended by the UP Sales Tax (Amendment and Validation) Act,  1991.    The  amending  Act received  the  assent  of  the  Governor of Uttar Pradesh on August 19, 1991.  Different dates were prescribed for coming into force  of  various  provisions  of  the  amending  Act. Section  21  of  the Act also underwent an amendment and the relevant provision with which we  are  concerned  came  into force with effect from February 19, 1991.

       Taking advantage of the  amendment  to  section  21, which  now prescribed a period of eight years, the Sales Tax Officer after taking sanction from the Commissioner of Sales Tax issued notices to the respondents in both these  appeals for  re-assessment.  In  the  case  of  Lohia  Machine  Ltd. sanction order is dated December  21,  1993  and  notice  is dated  September  8, 1994. In the case of Jyoti Traders date of sanction order is November 12, 1993 and  the  notice  had been  issued  for  January  11,  1994.  Sanctions  given and notices thus issued were after more  than  four  years  with reference  to  the  assessment  year  1985-86  under the Act

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before its amendment.

       The  respondent  challenged  both  these  orders  of sanction of the Commissioner of Sales Tax and the notice for re-assessment  in  two  separate  writ  petitions which were allowed by the High Court and the  sanction  orders  of  the Commissioner  as  well  as  notices  issued by the Sales Tax Officer were quashed.  This led to  filing  of  the  present appeals.

       Relevant  provisions of section 21 of the Act are as under:-

       "Section 21.   Assessment of tax on the turnover not         assessed during the year.

       (1) If the assessing authority has reason to believe         that  the  whole  or any part of the turnover of the         dealer, for any assessment year or part thereof, has         escaped assessment to tax or has been under assessed         or has been assessed to tax at  a  rate  lower  than         that  at  which  it is assessable under this Act, or         any  deductions  or  exemptions  have  been  wrongly         allowed  in  respect thereof the assessing authority         may, after issuing notice to the dealer  and  making         such inquiry as it may consider necessary, assess or         re-assess the dealer or tax according to law:

       Explanation.............

       (2)  Except as otherwise provided in this section no         order  of  assessment  or  re-assessment  under  any         provision  of this Act for any assessment year shall         be made after the expiration of four years from  the         end of such year."

       By  the  amending  Act  a  proviso  was   added   to sub-section 2 as under:-

       "Provided  that if the Commissioner of Sales Tax, on         being satisfied on the basis of reasons recorded  by         the   assessing   authority  that  it  is  just  and         expedient  so  to  do   authorizes   the   assessing         authority   in   that  behalf,  such  assessment  or         re-assessment may be made after  the  expiration  of         the period aforesaid but not after the expiration of         eight    years   from   the   end   of   such   year         notwithstanding    that    such    assessment     or         re-assessment may involve a change of opinion."

       There  are other amendments in section 21 which were made by subsequent amending Acts but with those we  are  not concerned.

       As  noted  above,  the  proviso  to sub-section 2 of section 21 as inserted by the amending Act, 1991  came  into force with effect from February 19, 1991.

       High Court had held  that  sanction  issued  by  the Commissioner  of  Sales  Tax  for  initiation of proceedings under Section 21 of the Act for the Assessment Year  1985-86

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was  barred  by  limitation  and that the proviso to Section 21(2) of the Act which had been introduced with effect  from February  19,  1991  and  was inapplicable to the Assessment Year 1985-86 as the assessment order for this year had  been made  much before the introduction of the proviso to Section 21(2) of the Act.  High Court was thus of the view that when the period for assessment  or  re-assessment  for  the  year 1985-86  under Section 21 of the Act before insertion of the proviso to Sub-section (2) thereof had expired on March  31, 1990, the amendment, had no effect.

       Mr.    Goel,   learned  counsel  for  the  appellant submitted  that  if  we   accept   the   interpretation   to Sub-section  (2) of Section 21 to hold that the amendment is of prospective nature it will make  the  proviso  redundant. He  said proviso in fact operates after expiry of four years period prescribed under that sub-section and that notice has to follow after the order is obtained from the  Commissioner and not before that.  Strong reliance was placed by him on a decision  of this Court in Commercial Tax Officer and others Vs.  Biswanath Jhunjhunwalla and another (1996 (5) SCC 626). In this case, which is under the Bengal Finance (Sales  Tax) Act,  1941  the  respondent,  a registered dealer under this Act, was assessed for the assessment years Chitra Sudi  2023 and 2024.    The  assessments were completed on February 17, 1969 and March 26, 1969 respectively.  Under rule 80 (5)  of the Bengal  Sales  Tax  Rules.  1941 made under that Act the assessment could have been reopened only within a period  of four years.  This Rule 80(5) in relevant part is as under:-

            "80(5)  The Commissioner or any other authority         to  whom  power in this behalf has been delegated by         the Commissioner, shall  not,  of  his  own  motion,         revise any assessment made or order passed under the         Act or the rules thereunder if -

            (ii)  the assessment has been made or the order         has been passed more than four years previously."

       Bengal  Sales  Tax  Ordinance,  1973 was promulgated which was later replaced by the Bengal Finance  (Sales  Tax) (Third  Amendment)  Act, 1974. This amending Act substituted Section 26(1) of the principal Act under which now the State Government was empowered to make rules, with prospective  or retrospective  effect  for  carrying out the purposes of the Act. With this new power conferred on the  State  Government Rule  80(5)  was amended by notification issued on March 30, 1974 amending the same with effect from  November  1,  1971, and in relevant part now it reads as under:-

       "80(5)  The  Commissioner  or any other authority to         whom power in this behalf has been delegated by  the         Commissioner  shall  not,  or order passed under the         Act or the rules thereunder if --

       (ii) the  assessment  to  Rule  80(5)  as  aforesaid         Commercial Tax Officer issued notices on November 7,         1974  re-opening  the  completed assessments for the         years Chitra Sudi 2023 and 2024.  These notices were         challenged  in  the  Calcutta  High  Court  by  writ         petition  questioning  the  legality of the notices.

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       High   Court   upheld   the   contention   of    the         respondent-assessee  that  by  the  amendment of the         Rule, assessments which had been completed could  be         revised  within  six  years  of  the  date  of  such         completion,  but  when  the  writ  to   revise   the         assessments  under  the  unamended  provision of the         rule stood barred on the date of the amendment, such         assessments could not be re-opened or revised.  High         Court said that  the  notification  did  not  either         expressly  or necessary implication confer any power         of revision of assessment which stood barred on  the         date on  which  it  was  issued.  After referring to         decision of this Court in the cases of ITO vs.  S.K.         Habibullah [(1962) 44 ITR 809], S.S.    Gadgil,  ITO         vs.  Lal and  Co.   (53 ITR 231) and J.P.  Jani, ITO         vs.  Induprasad Devshanker Bhatt [(1969) 72 ITR 595]         this Court held as under :-

       "12.  What, therefore, we have to seek is the  clear         meaning of  thee  said Notification.  If there be no         doubt about the meaning, the amendment brought about         by the said Notification must be given full  effect.         If  the  language  expressly  so  states  or clearly         effect  from  1.11.1971,  so  as  to  encompass  all         assessments  made  within  they have become final by         reason of the expiry of the period of four years  or         not.

       13.  By reason of the said Notification, with effect         from  1.11.1971,  Rule  80(5)(ii)  has to be read as         barring the Commissioner (or other authority to whom         power in this  behalf  has  been  delegated  by  the         Commissioner)  from  revising  of his own motion any         assessment made or order passed under the Act or the         rules if the assessment has been made or  the  order         has  been  passed  more  than  six years previous to         1.11.1971.   Put  conversely,   with   effect   from         1.11.1971.   Rule 80(5)(ii) permits the Commissioner         (or other authority) to revise of his own motion any         assessment made or order passed under the Act or the         rules provided the assessment has not been  made  or         the order passed under the Act or the rules provided         the assessment has not been made or the order passed         more than  six  years  previously.    This being the         plain meaning, the said Notification must  be  given         full effect.    Full effect can be given only if the         said Notification is read as  being  applicable  not         only  to  assessments which were incomplete but also         to assessments which had reached finality by  reason         of  the  earlier  prescribed  period  of  four years         having elapsed.  Where language  as  unambiguous  as         this  is  employed,  it  must  be  assumed  that the         legislature intended the amended provision to  apply         even to assessments that had so become final; if the         intention  was otherwise, the legislature would have         so stated."

      Mr. Agrawal, who appeared for Lohia Machine Ltd.  and Mr.   Hansaria,   for  Jyoti  Traders,  submitted  that  the amendment would not have  any  retrospective  operation  and that  High  Court  was right in its view. To get support for their arguments reference was made to the decisions of  this Court  in  Y. Narayana Chetty & Anr. vs. Income-Tax officer, Nellore, & Ors. [(1953) 35 ITR 388]. S.S. Gadgil vs.  Lal  &

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Co.  [(1964)  53  ITR  231].  J.P.  Jani, ITO vs. Induprasad Devshanker Bhatt [(1969)  72  ITR  595]  and  The  Ahmedabad Manufacturing  &  Calico  Printing  Co.  ltd. vs. S.C. Mehta Income-tax Officer and another [1963 Supp. (2) SCR 92].

       In Y.  Narayana  Chetty  &  Anr.    vs.   Income-Tax Officer Nellore & Ors.  one of the questions raised was that proceedings taken by the Income Tax officer under Section 34 of the Income Tax Act, 1922 were invalid because the  notice required  to  be  issued under the said section had not been issued against the assessees  contemplated  therein.    This Court  said that the Income Tax Officer had purported to act under Section 34(1)(a) against the assessee and proceeded to hold as under:

       "The said sub-section provides inter alia  that  "if         the Income-tax officer has reason to believe that by         reason of the omission or failure on the part of the         assessee  to  make  a  return  of  his  income under         Section 22 for any year or  to  disclose  fully  and         truly   all   material   facts   necessary  for  his         assessment for that year, income, profits  or  gains         for  that  year, income, profits or gains chargeable         to income-tax  has  been  under-assessed",  he  may,         within the time prescribed, "serve on the assessee a         notice  containing  all  or  any of the requirements         which  may  be  included   in   the   notice   under         sub-section  (2)  of  section  22 and may proceed to         re-assess  such  income,  profits  or  gains."   The         argument is that the service of the requisite notice         on  the  assessee  is  a  condition precedent to the         validity  of  any  re-assessment  made   under   the         validity of any re-assessment made under Section 34;         and  if  a  valid  notice is not issued as required,         proceedings  taken  by  the  Income-Tax  Officer  in         pursuance of an invalid notice and consequent orders         of  re-assessment  passed  by  him would be void and         inoperative.  In our  opinion,  this  contention  is         well-founded.   The  notice prescribed by section 34         cannot be regarded as a mere procedural requirement;         it is only if the  said  notice  is  served  on  the         assessee  as  required  that  the Income-tax officer         would be justified  in  taking  proceedings  against         him.  If no notice is issued or if the notice issued         is  shown  to  be  invalid  then the validity of the         proceedings taken by the Income-tax Officer  without         a  notice or in pursuance of an invalid notice would         be illegal and void.  That is the view taken by  the         Bombay  and  Calcutta High Courts in commissioner of         Income-tax vs.  Ramuskh Motilal [(1955) 27  ITR  54]         and R.K.  Das & Co.  vs.  commissioner of Income-tax         [(1956)  30  ITR  439]  and  we  think  that view is         right".

       In  S.S.  Gadgil  vs. Lal & Co. Section 34 of Income Tax Act, 1922 was considered which prescribed  a  period  of one  year  for  assessment  or  re-assessment in the case of income escaping assessment in the case of a person deemed to be an agent of a non-resident person. By Section 18  of  the Finance  Act,  1956, period of one year was increased to two years. The relevant clauses of Section  34  prescribing  the period within which notice may be issued read as follows:

       "If  he may in cases falling under clause (a) at any         time within eight years and in cases  falling  under

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       clause  (b) at any time within four years of the end         of that year, serve on the assessee......  a  notice         containing  all or any of the requirements which may         be included in a notice  under  sub-section  (2)  of         section  22  and  may  proceed to assess or reassess         such income, profits or gains or recompute the  loss         or depreciation allowance;.......

       provided that------....

       (iii)  Where the assessment made or to be made is an         assessment made or to be made on a person deemed  to         be  the agent of a non-resident person under section         43, this sub-section shall have effect as if for the         periods of eight years and four years  a  period  of         one year was substituted."

By section 18 of  the  Finance  Act,  1956  section  34  was extensively  amended  and  clause  (iii)  of the proviso was substituted by the following proviso:

       "Provided further that the Income-tax Officer  shall         not  issue  a  notice under this sub-section for any         year after the expiry of two years from that year if         the person on whom an assessment or reassessment  is         to  be  made  in pursuance of the notice is a person         deemed to be the  agent  of  a  non-resident  person         under section 43."

       Income-tax Officer, therefor, could issue  a  notice to  a  person deemed to be the agent of a non-resident after the expiry of two years from the date of the expiry  of  the assessment year.    It  was common ground that section 18 of the Finance Act, 1956 was not given retrospective  operation before  April  1,  1956.  The question before this Court was whether the Income-tax  Officer  could  issue  a  notice  of assessment  to  a person as an agent of a non-resident party under the amended provisions when the period prescribed  for such  notice  had,  before  the Amended Act came into force, expired. This Court said that the  Amending  Act  came  into force  after the period provided for issue of a notice under Section 34, before it was amended, had  expired.  The  Court said  that  in  considering  whether  the  amending  statute applied, the question was one of  interpretation,  i.e.,  to ascertain whether it was the intention of the legislature to deprive a taxpayer of the plea that action for assessment or re-assessment  could  not  be  commenced, on the ground that before the amending Act became effective, it was barred. The Court then held as under:

       "As  we  have  already  pointed  out,  the  right to         commence a proceeding  for  assessment  against  the         assessee  as  an agent of a non-resident party under         the Income-tax Act before it was amended,  ended  on         March 31,  1956.  It is ture that under the amending         Act  by  Section  18  of  the  finance  Act,   1956,         authority  was conferred upon the Income-tax Officer         to assess a person as an agent of  a  foreign  party         under  Section  43  within two years from the end of         the year  of  assessment.    But  authority  of  the         Income-tax  Officer  under  the  Act  before  it was         amended by the Finance Act of 1956,  having  already

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       come  to  an  end,  the  amending provision will not         assist him to commence a proceeding even  though  at         the  date when he issued the notice it is within the         period provided by that amending Act.  This will  be         so,  notwithstanding the fact that there has been no         determinable point of time between the expiry of the         time provided under the old Act and the commencement         of the amending Act.  The legislature has  given  to         Section  18 of the Finance Act, 1956, only a limited         retrospective operation, i.e., up to April 1,  1956,         only.   That  provision  must be read subject to the         rule that in the absence of an express provision  or         clear  implication,  the legislature does not intend         to attribute to thee amending  provision  a  greater         retrospectivity  than is expressly mentioned, nor to         authorise   the   Income-tax-officer   to   commence         proceedings which before the new Act came into force         had by the expiry of the period."

       In J.P.  Jani, Income-Tax Officer, Circle TV Ward G, Ahmedabad & Anr.   vs.    Induprased  Devshanker  Bhatt  the assessment  for the assessment year 1947-48 was completed on January 31, 1952 under the Income Tax Act, 1922.  Therefore, the Income-tax Officer received information that  a  certain profit made by the assessee had escaped assessment by reason of  the  assessee  not  having  disclosed at the time of the original assessment.   The  Income-tax  Officer,  therefore, after   obtaining   the  approval  of  the  Commissioner  of Income-tax issued notice dated March 27, 1956 under  Section 34(1)(a)  of  the  Income-tax Officer completed re-assessmet proceedings.  Assessee  went  in  appeal  to  the  Appellate Assistant  Commissioner  who allowed the same by order dated January 5, 1963 and set aside the order of assessment on the ground that there was no valid service of notice.   By  this time, Income  Tax Act, 1961 had come into force.  On January 4, 1963, the Income-tax Officer issued a notice calling upon the assessee to show cause why  proceedings  should  not  be taken  under  Section  147(a) of the new [Act for brining to tax the escaped  profit  of  the  assessee.    Subsequently, notice  under  section  148  of  the  new  Act  was  issued. Assessee protested against this new  notice  on  the  ground that action under the old Act had become time barred and the new Act  had  no application to his case.  After considering the provisions of the old Act and Section 297 of the new Act which repealed the old Act and on the effect of the  repeal, this  Court  said  that all the new sections must be read as applicable only to those cases where right of the Income-tax Officer to re-open the assessment was not barred  under  the repealed section.  The Court held as under :

       "In  our  view, the new statute does not disclose in         express terms or by necessary implication that there         was a revival of the right of the Income-tax Officer         to re-open an assessment which  was  already  barred         under  the  old  Act.  This view is borne out by the         decision of this Court in S.S. Gadgil vs. Lal &  Co.         [(1964) 53 ITR 231].

This  Court  observed  that  neither by express terms nor by necessary implication did  section  297(2)(d)(ii)  disclosed that there was  revival  of  the  right  of  the  income-tax Officer  to  re-open  an assessment which was already barred under the Old Act. The Section was applicable only to  those cases  where  the right of the Income-Tax Officer to re-open the assessment was not barred under the old Act.

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       In  The  Ahmedabad  Manufacturing  & Calico Printing Co., Ltd.  Vs.  S.C.  Mehta, Income-tax Officer & Anr.    in its  assessment  to  income  tax  for  the year 1952-53, the appellant, a company, had been granted under the  provisions of  the  Finance  Act,  1952,  a  rebate on a portion of its profits of the previous year, that is, 1951 which it had not distributed as dividends to its shareholders.  In  the  next assessment  year  1953-54,  the appellant used a part of the aforesaid undistributed profits for declaring dividends.  As the law then stood, nothing could be  done  by  the  revenue authorities  to  withdraw  the rebate earlier granted on the ground of the profits being utilised in declaring  dividends in a  latter year.  From April 1, 1956, however, there was a change in the law as sub-section (10) of Section 35  of  the Income-tax Act,  1922,  was  brought into force then.  By an order made on March 27, 1958, under  that  sub-section,  the aforesaid  rebate was withdrawn and the appellant was called upon to the High Court at Bombay for a  writ  to  quash  the order of March 27, 1958, on the ground that sub-section (10) was not  applicable  to  the  facts  of  this  case.    That application was dismissed by the High Court.  The appeal  in the  Supreme  Court  was  against  this decision of the High Court at Bombay dismissing the application.  Now sub-section (10) of Section 35 of the Income-Tax Act was enacted by  the Finance Act  of  1956.  That sub-section, in so far as it is necessary to state for the purpose of  this  case,  provided that  where  in  any  of  the  assessment  years  1948-49 to 1955-56, a rebate of income-tax was  allowed  to  a  company under  the  Finance Act prevailing in that year on a part of its total income "and subsequently the amount on  which  the rebate  of income-tax was allowed as aforesaid is availed of by the company, wholly or partly, for declaring dividends in any year  ............    the   Income-tax   Officer   shall re-compute  the  tax  payable by the company by reducing the rebate originally allowed."  The  sub-section  in  substance permits  a  rebate  duly  allowed in any year before it came into force to be withdrawn if "subsequently" the  amount  on which  the rebate was allowed "is availed of" "for declaring dividends in any year".  The appellant  contended  that  the sub-section  did  not  apply  unless the amount on which the rebate was granted was availed of  for  declaring  dividends after  the  sub-section  had come into force, that is, after April 1, 1956 and,  therefore,  it  did  not  apply  to  the present case.    It  was  said  that  if it were not so, the sub-section would be given a retrospective operation and the rule was that it was to be presumed that a  statute  dealing with  substantive  rights  was  not  to have such operation. This Court, per majority (3 :   2),  held  that  sub-section (10)  of  Section  15  was  applicable  to the present case. Sarkar, J.  who was in majority, in his concurring judgment, observed as under:

       "There  is  no  dispute that by sub-section (10) the         legislature  intended  to  penalise  a  case   where         subsequent  to  its  enactment,  the amount on which         rebate had been granted was utilised in  declaration         of dividends.  Now is there any reason to think that         the  legislature  did not want to impose the penalty         also on those who had earlier utilised the amount in         declaration of dividends?    There  was  no  special         merit in  these latter cases.  And I also think that         they formed the majority of the cases.  The grant of         rebate having been stopped  after  March  31,  1956,         there  was  no occasion to provide for cases of such

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       grant thereafter.  All these circumstances  lead  me         to  the  view  that the intention of the legislature         was to penalise the cases of utilisation of  amounts         on  which  rebate  had  been  granted  in payment of         dividends which had happened before the  sub-section         came into  force.   The remedy which the sub-section         provided would largely fail in any other view.   The         general  scope  and purview of the sub-section and a         consideration of the evil which it was  intended  to         remedy  lead me to the opinion that the intention of         the legislature clearly  was  that  the  sub-section         should  apply  to  the  facts  that  we have in this         case."

Hidayatullah, J.    who  spoke  for  the  majority said that sub-section (10) was  introduced  into  section  35  of  the Income  Tax  Act,  1922 by the Finance Act, 1956 and that if there was nothing more in the language of the sub-section to give it  operation  from  an  earlier  date  it  would  have operated  only  from  April  1, 1956 but the language of the sub-section gave it additional retrospectively and  said  so in  such clear and unabiguous language as to leave no doubt. He then observed :

       "In the present case, this  is  so.    The  assessee         company  declared  dividends  in  the  calendar year         1952.   The  assessment   year   was   1.4.1953   to         31.3.1954.   The  letter  written on March 18, 1958,         asking the assessee company to show cause was within         the  four  years  reckoned  from  the  end  of   the         financial  year  (31-03-1954) in which the amount on         which  rebate  of  Income-tax  was  availed  of  for         declaring dividends.  It complied with the letter of         the sub-section.    Since  the  power  commenced  on         1.4.1956, the utmost reach of the Income-tax Officer         would be the end of the assessment year 1952.    Any         declaration  of dividend after 1 day of April, 1952,         out of accumulated profits of any of  the  years  in         which rebate was earned would be within time for the         recall  of  the  rebate.  But a declaration prior to         1.4.1952 would be beyond the power of the Income-tax         Officer to recall. This meaning is the only  meaning         which  the  plain words of the section can bear. Any         other  meaning  might  make  sub-s.(10)   unworkable         because  no  company, with the knowledge that rebate         would be recalled, would like to  declare  dividends         after  April  1, 1956 out of amounts on which rebate         was earned. If the  other  meaning  was  attributed,         sub-s.  (10)  might  well  be  a  dead  letter.  The         sub-section was obviously the result of  noting  how         rebates were earned and later were being utilized to         fill  the pockets of the shareholders. The amendment         met this situation and did it in very clear terms."

We do not think that decisions in the  cases  of  Y.Narayana Chetty & Anr.   S.S.   Gadgil and J.P.  Jani, ITO are of any help in interpreting the provisions of law  now  before  us. In   Y.Narayana   Chetty’s   case,  this  Court  upheld  the contention of the assessee that the notice on  the  assessee is  a  condition  precedent  to the validity of reassessment made under Section 34 of the Income  Tax  Act,  1922.    The Court  said  that notice prescribed under this section could not be regarded as a mere procedural  requirement  and  that the  Income-tax  Officer  gets jurisdiction to reassess only

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when notice is served on the assessee as required.  In  S.S. Gadgil’s  case,  this Court said that in considering whether the amending statute applied, the question was  one  of  the interpretation  and that the amending provision must be read subject to the rules that  in  the  absence  of  an  express provision  or  clear  implication  the  legislature does not intend to attribute to  the  amending  provision  a  greater retrospectively than expressly mentioned.  J.P.  Jani’s case was  concerned  with  the retrospective operation of the new Income Tax Act, 1961 when assessment proceedings  under  the old Income Tax Act, 1922 had already concluded and period to re-open the assessment under the old Act had become barred.

       The two decisions  in  the  cases  of  The  Ahmedbad Manufacturing & Calico  Printing  Co.    Ltd.  and Biswanath Jhunjhunwalla & Anr.  are more closer to the issue  involved in the  present  case  before us.  They laid down that it is the language of the provision that matters and when  meaning is clear,  it  has  to  be given full effect.  In both these cases this Court held that the  proviso  which  amended  the existing provision   gave  it  retrospectively.    When  the provision of law is explicit, it has to  operate  fully  and there could  not be any limits to its operation.  This Court in Biswanath Jhunjhunwalla case said that  if  the  language expressly so states or clearly implies, retrospectively must be given  to  the provision.  Under Section 34 of the Income Tax, 1922, it is the service of the notice which is sine qua non, an  indispensable  requisite,  for  the  initiation  of assessment  or  reassessment  proceedings  where  income had escaped assessment.  That is not so  in  the  present  case. Under  sub-section  (1)  of Section 21 of the Act before its amendment, the assessing authority may, after issuing notice to the dealer and making such inquiry  as  it  may  consider necessary,  assess  or reassess the dealer according to law. Sub-section (2) provided that except as  otherwise  provided in  this  Section  no order for any assessment year shall be made after the expiry of 4 years from the end of such  year. However,  after  the  amendment,  a  proviso  was  added  to sub-section  (2)  under  which  Commissioner  of  Sales  Tax authorizes  the  assessing  authority  to make assessment or reassessment after the expiration of 8 years from the end of such  year   notwithstanding   that   such   assessment   or reassessment may  involve  a change of opinion.  The proviso came into force w.e.f.  February 19, 1991.  We do not  think that  sub-section  (2)  and  the  proviso  added to it leave anyone in doubt that as on the date when  the  proviso  came into  force,  the  Commissioner of Sales Tax could authorise making of assessment or reassessment after the expiration of 8 years from the end of that particular assessment year.  It is immaterial if a period  for  assessment  or  reassessment under  sub-section  (2) of Section 21 before the addition of the said proviso had expired.  Here, it is the completion of assessment or reassessment under Section 21 which is  to  be done  before  the  expiration  of 8 years of that particular assessment year.  Read as it is, these provisions would mean that the assessment for the year 1985-86 could be  re-opened up to  March 31, 1994.  Authorisation by the Commissioner of Sales Tax and completion of assessment or reassessment under sub-section (1) of Section 21 have to be completed within  8 years of  the  particular  assessment  year.   Notice to the assessee follows the authorisation by  the  Commissioner  of Sales  Tax,  its  service on the assessee in not a condition precedent to re-open the assessment.   It  is  not  disputed that a  fiscal statute can have retrospective operation.  If we accept the interpretation given by the  respondents,  the

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proviso  added  to  sub-section (2) of Section 21 of the Act becomes redundant.  Commencement of  Act  can  be  different than  the  operation  of the Act though sometime both may be the same.  Proviso now added to sub-section (2)  of  Section 21  of  the Act does not put any embargo on the Commissioner of Sales Tax not to reopen  the  assessment  if  period,  as prescribed earlier, had expired before the proviso came into operation.   One  has  to see the language of the provision. If it is clear, it has to be given  its  full  effect.    to reassure  oneself,  one  may  go  into  the intention of the legislature in  enacting  such  provision.    The  date   of commencement of the proviso to Section 21(2) of the Act does not control   its  retrospective  operation.    Earlier  the assessment/ re-assessment could have been  completed  within four years of that particular assessment year and now by the amendment  adding  proviso to section 21(2) of the Act it is eight years.  The only safeguard  being  that  it  is  after satisfaction of thee Commissioner of Sales Tax.  The proviso is  operative  from  February 19, 1991 and a bare reading of the proviso shows that the operation of this proviso related and encompasses back to previous eight assessment years.  We need not refer to  the  provisions  of  Income  Tax  Act  to interpret  proviso  to  Section  21(2)  Language of which is clear  and  unambiguous  and  so   is   the   intention   of Legislature.   We  are thus, of the view that High Court was not right in quashing the sanction given by the Commissioner of Sales Tax and notices issued by the  Assessing  Authority in pursuance thereto.

       We,  therefore, set aside the impugned judgments and orders of the High Court and allow the appeals with cost.