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Income‑tax Case No. 741 of 1972, decided on 28th September,1983.
S. 45‑A‑Section 45‑A is in nature of penal provision and no retrospective in operation.
‑‑‑ Penal provision cannot operate restrospectively unless so provided by statute itself.
Waheed Farooqui for Appellant. .
I. N. Pasta for Respondent.
Date of hearing: 28th September, 1983.
The Department has filed application under sec tion 66(1) of the Income‑tax Act raising the following question :‑
"Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that section 45‑A of the Income‑tax Act 1922 cannot apply retrospectively to the assessment trade for assessment year 1954‑55 "
Briefly the faces are that the original assessment in respect of assessment year 1954‑55 was trade under section 23(3) of the Income‑tax Act, on 30th June, 1959. On 17‑5‑1969 the Income Tax Officer passed an order under sec tion 45‑A of Income‑tax Act imposing additional income‑tax of Rs. 5.584. The respondent filed an appeal contending that section 45‑A came into force on 1‑7‑1963, and therefore, it cannot apply to an assessment for an earlier year. The learned Tribunal allowed the appeal, and act aside the order. Section 45‑A was added by Finance Act, 1963 and was substituted by Finance Act, 1966, whereby any assessee who was failed to pay the tax due from him or has paid A tax under section 22‑A which is less than 80 %, of the tax payable was liable to pay additional amount of tax. Section 45‑A when introduced by the Finance Acts, 1963 and 1966 did not make its operation with retrospective effect. Section 45‑A is in the nature of penal provision, whereby additional tax is imposed in case of default in payment of tax. Such a liability was for the first time created in 1963. There is nothing to show that it could be applied in respect of priding assessment years. A penal provision cannot operate retrospectively unless it is so provided by the statute itself.
Mr. Abdul Waheed Farooqui has frankly stated that section 45‑A cannot be applied on the respondent. He has stated that the view taken by that Tribunal is correct. We, therefore, answer the Reference in the affirmative.
M. Z. M. Reference answered.
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