{"id":267,"date":"2023-05-17T15:34:54","date_gmt":"2023-05-17T15:34:54","guid":{"rendered":"https:\/\/theleagle.in\/?p=267"},"modified":"2023-08-01T07:31:03","modified_gmt":"2023-08-01T07:31:03","slug":"machinery-provisions-brook-no-vested-rights-supreme-court-holds-that-amendment-to-section-153c-it-act-1961-is-retrospective","status":"publish","type":"post","link":"https:\/\/theleagle.in\/?p=267","title":{"rendered":"Machinery Provisions Brook No Vested Rights: Supreme Court Holds that Amendment to Section 153C, IT Act, 1961 is Retrospective"},"content":{"rendered":"<div id=\"bsf_rt_marker\"><\/div>\n<p><\/p>\n\n\n\n<p>On 6 April 2023, a Division Bench of the Supreme Court in&nbsp;<em>Vikram Bhatia<\/em>&nbsp;case<a href=\"applewebdata:\/\/46FEFACD-7659-4AF1-B771-C4E3F253FE97#_ftn1\"><sup>[1]<\/sup><\/a>, held that the amendment to Section 153C, IT Act, 1961 was retrospective in nature and would be applicable to searches conducted even before the date of amendment, i.e., 1.06.2015. The Supreme Court\u2019s decision is another example of its deferential approach to the State in tax matters. The impugned case also highlights that the Revenue Department is not hesitant to argue that an amendment is retrospective on the pretext that the pre-amendment provision was interpreted contrary to legislative intent. An argument that the Supreme Court and other Courts have not scrutinized with necessary rigor.&nbsp;&nbsp;<\/p>\n\n\n\n<p><strong>Background to Amendment of Section 153C, IT Act, 1961&nbsp;<\/strong><\/p>\n\n\n\n<p>The relevant portion of Section 153C, as it stood before its amendment vide the Finance Act, 2015, provided that where the assessing officer is satisfied that&nbsp;any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned&nbsp;belongs or belong to a person other a person against whom search is conducted, then such books of account or assets shall be handed over to the assessing officer having jurisdiction over the other person. And the other person may be issued notice and their income reassessed under Section 153-A, IT Act, 1961.&nbsp;&nbsp;&nbsp;<\/p>\n\n\n\n<p>The Delhi High Court in&nbsp;<em>Pepsico India<\/em>&nbsp;case<a href=\"applewebdata:\/\/46FEFACD-7659-4AF1-B771-C4E3F253FE97#_ftn2\"><sup>[2]<\/sup><\/a>&nbsp;held that the words \u2018belongs or belong to\u2019 should not be confused with \u2018relates to or refers to\u2019. In this case, the Delhi High Court noted that if&nbsp;&nbsp;the purchaser\u2019s premises are searched and a registered sale deed is seized, it cannot be said that it \u2018belongs to\u2019 to the vendor just because his name is mentioned in the document. (para 16) The Delhi High Court\u2019s interpretation meant that the assessing officer could only initiate proceedings against a third party if the incriminating material found during search proceedings \u2018belonged to\u2019 the third party and not merely \u2018related to\u2019 the third party. The Revenue Department\u2019s stance was that the Delhi High Court\u2019s interpretation did not align with the intent of the provision. Though the Revenue Department\u2019s disagreement with the Delhi High Court\u2019s ruling could also stem from the fact that its interpretation set a high threshold for the assessing officer to invoke Section 153C against a third party.&nbsp;<\/p>\n\n\n\n<p>To overcome the effect of the Delhi High Court\u2019s judgment, Finance Act, 2015 amended Section 153C, and Section 153C(1)(b) now states that where&nbsp;the assessing officer is satisfied that&nbsp;any books of account or documents, seized or requisitioned,&nbsp;pertains or pertain to, or any information contained therein, relates to, person other than against whom search is conducted, then such books of account or assets shall be handed over to the assessing officer having jurisdiction having jurisdiction over the other person. And the other person may be issued notice and their income reassessed under Section 153-A, IT Act, 1961.&nbsp;&nbsp;&nbsp;<\/p>\n\n\n\n<p>The scope of Section 153C was clearly widened, the threshold to proceed against a third party was lowered with the phrase \u2018belongs to\u2019 being replaced with \u2018relates to\u2019. The expression \u2018belongs to\u2019 though continued to qualify money, bullion, jewellery or other valuable article or thing mentioned in Section 153C(1)(a).&nbsp;&nbsp;<\/p>\n\n\n\n<p><strong>Interpretation of Amended Section 153C, IT Act, 1961&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;<\/strong><\/p>\n\n\n\n<p>The Supreme Court heard appeals from common judgment<a href=\"applewebdata:\/\/46FEFACD-7659-4AF1-B771-C4E3F253FE97#_ftn3\"><sup>[3]<\/sup><\/a>&nbsp;of the Gujarat High Court pronounced in April 2019. The Gujarat High Court observed that though Section 153C was a machinery provision, but by virtue of its amendment new class of assessees were brought within the scope of the provision and it affected their substantive rights and resultantly Section 153C could not be interpreted to be a mere procedural\/machinery provision. Further, the Gujarat High Court reasoned that the amended provision was much wider in scope as compared to its predecessor. The Gujarat High Court concluded that amendment to Section 153C shall not be given a retrospective effect, and no notices could be issued post-amendment of Section 153C for searches conducted before its amendment, i.e., 1.06.2015. Against this decision of the Gujarat High Court, the Supreme Court heard appeals filed by the Revenue Department.&nbsp;&nbsp;&nbsp;&nbsp;<\/p>\n\n\n\n<p>The precise question before the Supreme Court was whether amendment to Section 153C, IT Act, 1961 was retrospective? And whether Section 153C, IT Act, 1961 would be applicable to searches conducted before 1.06.2015, i.e., the date before amendment. The Supreme Court answered in the affirmative. There are several limitations in the Supreme Court\u2019s approach, let me highlight a few below.&nbsp;<\/p>\n\n\n\n<p>First, the Supreme Court accepted the State\u2019s argument that the amendment to Section 153C, IT Act, 1961 was \u2018a case of substitution of the words by way of amendment\u2019. (para 10.1) The Supreme Court cited numerous precedents to the effect without really explaining the basis on which it was deciphering that the amendment in question was a \u2018substitution\u2019 amendment. In fact, the Supreme Court adopted a broad brush approach and neglected to observe that even post-amendment Section 153C(1)(a) retains the phrase \u2018belongs to\u2019. Section 153C(1), after amendment vide the Finance Act, 2015 states that:&nbsp;<\/p>\n\n\n\n<p><em>Nothwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, where the Assessing Office is satisfied that,-<\/em><\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li><em>any money, bullion, jewellery or other valuable article or thing, seized or requistioned,&nbsp;<u>belongs to<\/u>; or&nbsp;<\/em><\/li>\n\n\n\n<li><em>any books of account or documents, seized or requistioned, pertains or pertain to, or any information contained therein,&nbsp;<u>relates to<\/u>,&nbsp;&nbsp;&nbsp;<\/em><\/li>\n<\/ul>\n\n\n\n<p><em>a person other than the person referred to in section 153A, \u2026&nbsp;<\/em>(emphasis added)&nbsp;<\/p>\n\n\n\n<p>Clearly, both phrases \u2018belong to\u2019 and \u2018relates to\u2019 have been retained in Section 153C. And the afore cited portion of Section 153C provides reasonable basis to argue that the Finance Act, 2015 did not effectuate a \u2018substitution amendment\u2019 of Section 153C. The amendment only lowers the threshold to initiate the proceedings against the third person for certain kinds of documents and does not&nbsp;<em>fully substitute<\/em>&nbsp;the pre-amended provision.&nbsp;&nbsp;&nbsp;&nbsp;<\/p>\n\n\n\n<p>Second, the Supreme Court reasoned that Section 153C, IT Act, 1961 was a machinery provision and it must be construed to give effect to the purpose and object of the statute. (para 10.6) The Supreme Court then cited a host of decisions to support its stance that machinery provisions must be construed liberally. However, the decisions cited by the Supreme Court such as&nbsp;<em>Calcutta Knitwears<\/em>&nbsp;case<a href=\"applewebdata:\/\/46FEFACD-7659-4AF1-B771-C4E3F253FE97#_ftn4\"><sup>[4]<\/sup><\/a>, hold that machinery provisions should be interpreted liberally&nbsp;<em>to give meaning to the charging provision<\/em>. The judicial precedents on this issue do not state that machinery provisions should be interpreted liberally per se. Neither do any of the precedents cited by the Supreme Court state that legislative intent needs to be placed at the highest pedestal without weighing it against other factors such as taxpayer rights.&nbsp;<\/p>\n\n\n\n<p>Third, the Supreme Court rejected the assessee\u2019s contention that Section 153C, IT Act, 1961 should not be interpreted to have retrospective effect since it affected the substantive rights of the third party. The Supreme Court rejected the argument on the ground that the pre-amended Section 153C was also applicable to the third party. While the Supreme Court is right, its statement does not sufficiently appreciate that the threshold to proceed against the third party after amendment to Section 153C was lowered directly affecting the rights of such party. Instead, it stressed that there was legislative intent to proceed against the third party before and after the amendment without delving into the details. Equally, the Supreme Court dismissed the argument that there is presumption against retrospectivity of a statute. The Supreme Court examined the jurisprudence on presumption against\/for retrospectivity superficially. At no place in the judgment is there an examination as to why and how the amendment to Section 153C is \u2018declaratory\u2019 and why presumption against its retrospectivity is inapplicable.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;<\/p>\n\n\n\n<p>Fourth, which overlays with the second point, is that the Supreme Court laid considerable emphasis on legislative intent. Despite immense emphasis on legislative intent, the Supreme Court did not examine as to why one sub-clause of Section 153C continued to retain \u2018belongs to\u2019 after the amendment. And, neither did it refer to any source that helps us understand the original legislative intent or the intent behind amendment to Section 153C. In the absence of such references, legislative intent is a malleable phrase in the hands of any adjudicating authority, and it was used as such in the impugned case.&nbsp;&nbsp;<\/p>\n\n\n\n<p>Fifth, the Supreme Court stated that the Delhi High Court construed the term \u2018belongs\u2019 unduly narrowly and restrictively, but never clarified the precise objection to the High Court\u2019s interpretive approach. Strict interpretation of tax statutes is the default approach of Courts, and deviations from it need to be justified not adherence to it. The Delhi High Court was clear in its judgment that a tax statute must be interpreted strictly and in case of doubt or dispute must be interpreted in favor of the assessee. (para 7) And the Delhi High Court adopted such an approach in construing Section 153C, IT Act, 1961. The Supreme Court never truly explained how adopting such an approach by the Delhi High was an unjust or restrictive interpretation.&nbsp;<\/p>\n\n\n\n<p>Sixth, the Supreme Court took made an interesting point when it referred to First Proviso to Section 153C. The said Proviso contains a deeming fiction where in case of a third person, the reference to the date of initiation of the search under Section 132 shall be construed as reference to the date of receiving of books of account or documents or assets seized or requisitioned by the assessing officer having jurisdiction over such person. The deeming fiction in the First Proviso&nbsp;<em>moves<\/em>&nbsp;the date of initiation of search to the date the assessing officer of the third person receives the documents. In the impugned case, while the search took place before 1.06.2015, the assessing officer of the third party received the documents on 25.04.2017 and issued notice to the third party on 04.05.2018. Thus, as per the deeming fiction, the search against the third party was initiated after 1.06.2015. Given these set of facts, it was not unreasonable to suggest that the applicable provision should have been the amended Section 153C. The Supreme Court\u2019s used the First Proviso to support its conclusion (para 10.3) But the Supreme Court did not delve into the implication of the First Proviso adequately vis-\u00e0-vis its repeated emphasis on legislative intent. The Supreme Court observed that not allowing the Revenue Department to proceed against the third party \u2018solely on the ground that the search was conducted prior to the amendment\u2019 would frustrate the object and purpose of the amendment. In arriving at this conclusion, the Supreme Court did not satisfactorily examine how the deeming fiction in the First Proviso to Section 153C makes the actual date of initiation of search irrelevant for the third person.&nbsp;&nbsp;&nbsp;<\/p>\n\n\n\n<p><strong>Conclusion&nbsp;<\/strong><\/p>\n\n\n\n<p>The Supreme Court granting the State leeway in tax (and economic) laws is a well-entrenched doctrine in Indian tax jurisprudence. In this case, the Supreme Court used the doctrine impliedly to stamp its approval to an amendment to IT Act, 1961, stating that the amendment was retrospective in effect, without articulating its reasoning in a cogent and defensible manner. While the deeming fiction in the First Proviso to Section 153C lends some support to the Supreme Court\u2019s conclusion, there was need for more robust reasoning to interpret the amendment to be retrospective in nature. The amendment of Section 153C has an appreciable impact on the substantive rights of the third parties. This factor alone was sufficient for the Supreme Court\u2019s conclusion to be based on impeccable reasoning, but we only saw a glimpse of it in the judgment.&nbsp;<\/p>\n\n\n\n<hr class=\"wp-block-separator has-alpha-channel-opacity\"\/>\n\n\n\n<p><a href=\"applewebdata:\/\/46FEFACD-7659-4AF1-B771-C4E3F253FE97#_ftnref1\"><sup>[1]<\/sup><\/a>&nbsp;<em>Income Tax Officer v Vikram Sujit Kumar Bhatia<\/em>&nbsp;2023 SCC OnLine SC 370.&nbsp;<\/p>\n\n\n\n<p><a href=\"applewebdata:\/\/46FEFACD-7659-4AF1-B771-C4E3F253FE97#_ftnref2\"><sup>[2]<\/sup><\/a>&nbsp;<em>Pepsico India Holdings Private Limited v ACIT<\/em>&nbsp;2014 SCC OnLine Del 4155.&nbsp;<\/p>\n\n\n\n<p><a href=\"applewebdata:\/\/46FEFACD-7659-4AF1-B771-C4E3F253FE97#_ftnref3\"><sup>[3]<\/sup><\/a>&nbsp;Supreme Court, in its judgment, did not specifically state the name of parties and the exact decision. Though one of the Gujarat High Court\u2019s decision decided in 2019 is&nbsp;<em>Anikumar Gopikishan Aggarwal v CIT<\/em>&nbsp;[2019] 106 taxmann.com 137 (Guj). In this case, the Gujarat High Court decided that amendment to Section 153C, IT Act, 1961 was prospective in nature.&nbsp;&nbsp;<\/p>\n\n\n\n<p><a href=\"applewebdata:\/\/46FEFACD-7659-4AF1-B771-C4E3F253FE97#_ftnref4\"><sup>[4]<\/sup><\/a>&nbsp;<em>Commissioner of Income Tax, III v Calcutta Knitwears, Ludhiana<\/em>&nbsp;(2014) 6 SCC 444.&nbsp;<\/p>\n","protected":false},"excerpt":{"rendered":"<p>On 6 April 2023, a Division Bench of the Supreme Court in&nbsp;Vikram Bhatia&nbsp;case[1], held that the amendment to Section 153C, IT Act, 1961 was retrospective in nature and would be applicable to searches conducted even before the date of amendment, i.e., 1.06.2015. The Supreme Court\u2019s decision is another example of its deferential approach to the &#8230; <a title=\"Machinery Provisions Brook No Vested Rights: Supreme Court Holds that Amendment to Section 153C, IT Act, 1961 is Retrospective\" class=\"read-more\" href=\"https:\/\/theleagle.in\/?p=267\" aria-label=\"Read more about Machinery Provisions Brook No Vested Rights: Supreme Court Holds that Amendment to Section 153C, IT Act, 1961 is Retrospective\">Read more<\/a><\/p>\n","protected":false},"author":2,"featured_media":275,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_themeisle_gutenberg_block_has_review":false,"cybocfi_hide_featured_image":"","footnotes":""},"categories":[9],"tags":[39,18,40,25,94,37,38,36,32],"class_list":["post-267","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-direct-tax","tag-assessment","tag-delhi-high-court","tag-gujarat-high-court","tag-it-act-1961","tag-ravpratapsingh","tag-retrospective-amendment","tag-search","tag-section-153c","tag-supreme-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v23.9 - https:\/\/yoast.com\/wordpress\/plugins\/seo\/ -->\n<title>Machinery Provisions Brook No Vested Rights: Supreme Court Holds that Amendment to Section 153C, IT Act, 1961 is Retrospective - TheLeagle | Eco Law Forum<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/theleagle.in\/?p=267\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Machinery Provisions Brook No Vested Rights: Supreme Court Holds that Amendment to Section 153C, IT Act, 1961 is Retrospective - TheLeagle | Eco Law Forum\" \/>\n<meta property=\"og:description\" content=\"On 6 April 2023, a Division Bench of the Supreme Court in&nbsp;Vikram Bhatia&nbsp;case[1], held that the amendment to Section 153C, IT Act, 1961 was retrospective in nature and would be applicable to searches conducted even before the date of amendment, i.e., 1.06.2015. 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