FM’s & CBDT’s Promise Not To Reopen Cases Despite Retro Law Is Illegal

Retrospective amendments have always been a bone of contention in taxation laws. Sometimes to cure the defects pointed out by courts in the fiscal legislation and sometime (by being accompanied by validation laws) to take away vested rights of the citizens, retrospective amendments are not unknown to tax jurisprudence. Even though they may be criticized on grounds of unreasonable or unfairness and the legislature making such amendments may not be beyond reproach, still the competence of the legislature to make retrospective amendments in taxation laws is duly acknowledged and judicially upheld.

The Finance Act, 2012 has introduced a number of retrospective amendments to the Income Tax Act, 1961 with some of the amendments being introduced with effect from the date on which the 1961 Act come into force. The law to this regard is well settled that once a retrospective amendment is validly enacted than it is in the fitness of things as also incumbent upon the judicial authorities to decide the pending lis upon the strength of such retrospective amendment. However a tall claim has been made by the Finance Minister before the Parliament that the retrospective amendments introduced in the Finance Act, 2012 will not be the basis of reopening of assessments which have already been closed before the enactment of such retrospective amendments. This claim has also been backed by a recent CBDT Instruction. This paper revisits the law relating to reopening of assessments in the context of retrospective amendments as applicable in India and examines the correctness of the Government’s claim from a purely legal perspective.

Under the provisions of Income Tax Act, 1961 power has been vested with the Assessing Officers to reopen a concluded assessment within the specified time-frame if income has escaped assessment. The reason for escaping of assessment can be manifold. One such valid reason for reopening of assessment is that the law has been amended retrospectively(1). The only rider to this ground is that given the language of Section 149 there can be no reopening beyond a period of four years if there is no ‘failure to disclose’ on the part of the assessee. Therefore retrospective amendment is not a valid ground for reopening of assessment beyond four years(2).

In this background the question arises that if the statute permits and the Courts have upheld reopening of assessment on ground of retrospective amendment, is it permissible for the Finance Minister or the CBDT to declare and direct that no reopening will take place on ground of retrospective amendment? The answer in an emphatic no, which is evident from the settled legal position as discussed in the following paragraphs;

(a) First and foremost, the speech of the Finance Minister is not the guide for interpretation of statutory provisions. The law to this regard is well settled that the Court can rely upon the speech of the Finance Minister occasioning the movement of a Finance Bill only in case of ambiguity of the provisions in order to decipher the legislative intent (3). However when the provisions are unambiguous then regard cannot be had to the speech of the Finance Minister in the Parliament (4). If this is the legal position and relevance attached to the of Finance Minister’s speech during the occasioning of the Bill, there hardly seems any greater weightage being assigned to speech at other occasions made by the Finance Minister.

(b) The law to this effect is well settled that the assumptions and presumptions of the Parliament do not make the law and it is the text of the law alone which is relevant (5). Therefore even if Finance Minister and the entire Parliament assume and believe that the retrospective amendments in the Finance Act, 2012 will not be a ground for reopening of assessment, that would not be a valid ground to hold that there would be no reopening. In fact if what the Finance Minister states is correct that retrospective amendment will not be a ground for reopening of assessment then the proviso to Section 14A(3) is redundant. That proviso specifically provides that the retrospective amendments in Section 14A will not be a ground for reopening of assessment. If the Finance Minister’s claim is correct then there was no need for the said proviso to Section 14A.

(c) On the aspect of the power of CBDT to issue a Circulars and instructions, the law to this regard is well settled that CBDT Circulars and Instructions are binding on the Department. However it is equally well settled that CBDT Circulars and Instructions cannot bind the department or the officers as far as exercise of statutory powers or exercise of their discretion is concerned (6). When the statute provides for retrospective amendment and the law obliges the assessing officer to reopening cases (within period of limitation) on such ground then the assessing officer would be failing in the statutory duty by not reopening assessment. One is reminded of the clear enunciation of law on this aspect by the Delhi High Court in the following terms (7);

94. The impugned Circular was issued by the executive and sent to all Chief Commissioners of Central Excise, all Director General of Central Excise, all Commissioners of Central Excise (Appeals) and all Commissioners of Central Excise. Some of these bodies discharge quasi judicial functions. It is the settled position of law that quasi judicial functions cannot be controlled by executive actions by issuing circulars. It is totally impermissible. According to the spirit of Section 37B circulars or directions can be issued in order to achieve the object of uniformity and to avoid discrimination. Such circulars bind the officers only when they act in their administrative capacity. It must be clearly understood that the Board’s circulars instructions or directions cannot in any manner interfere with quasi judicial powers of the Assessing Officers. Officials exercising quasi judicial powers must ignore any circular or direction interfering with their quasi judicial functions.

95. Whenever any authority is conferred with the power to determine certain questions in judicial and/or quasi judicial manner, the authority is required to exercise the power conferred upon him as per his own discretion. This is the essence of judicial and quasi judicial function. The authority exercising such powers cannot be influenced by any directions, instructions or the Circulars that may be issued by any other agency. Consequently, the Circular issued by the respondents cannot be permitted to interfere with the discretion of the judicial and quasi judicial authorities.

96. The power to impose tax is essentially a legislative function and according to our constitutional scheme it cannot be delegated. The Excise Duty which the legislature intends to impose must be imposed directly in accordance with law. By issuing the impugned circular the respondent cannot introduce revenue legislation indirectly. The impugned circular also deserves to be quashed on this ground also.

97. Consequently, the impugned circular dated 7-9-2001 issued by the Ministry of Finance, Department of Revenue, Central Board of Excise & Customs is quashed and proceedings emanating from the said Circular also stand quashed. These writ petitions are accordingly allowed. In the facts and circumstances of the case, we direct the parties to bear their own costs.

(d) The law to this regard is also settled that Board’s Circular / instruction cannot be contrary to law (8). Therefore when the law obliges the assessing officer to reopen the assessment and the Circular / instruction directing the assessing officer not to, renders the Circular / instruction contrary to law. One is reminded of the decision of a Constitutional Bench of the Hon’ble Supreme Court wherein it has been categorically declared that “a circular which is contrary to the statutory provisions has really no existence in law”. The Instruction (9) dated 29.05.2012 is therefore illegal as it is contrary to statutory provisions of the income tax act as interpreted by the Supreme Court.

(e) The same outcome is reached even if the matter is examined from a practical viewpoint. Suppose an assessing officer goes ahead and reopens a particular assessment within limitation on the ground of the retrospective amendment, will it be open to the assessee to challenge the same on the ground that it is contrary to Finance Minister’s statement before the Parliament and the Circular of the Board? The answer is an emphatic no. The statements made before the Parliament do not create legally enforceable rights and are also not justiciable. Therefore any case they do not advance the case of the assessee. As regards the Circular, it does hold goods being contrary to statutory provisions as also the decisions of the Supreme Court. In any case, the Departmental Circulars do not bind the judicial and quasi-judicial authorities and therefore are of no assistance to the assessee to challenge the action of the Assessing Officer. Therefore the reopening cannot be challenged at all. In fact in Ratan Melting the Supreme Court went on to declare that “circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the Court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court.”

Whether such Assessing Officer will be liable for disciplinary action for violating the CBDT Circular is no one’s concern and in any case is not determinative of the reassessment proceedings. Thus the moot point remains is that if the speech of the Finance Minister as well as the CBDT Circular does not have legal force, why all this effort to issue them. The Press Release citing Finance Minister states it is to allay the fears of the foreign investors in the wake of the numerous retrospective amendments in the Finance Act, 2012. If that was indeed the intent then a provision like the proviso to Section 14A(3) should have been introduced. However that not being done makes it clear that the speech as well as the Circular is mere eyewash with the legal position being different.

The intent of this article is to neither attribute any motives nor criticize any officer or concerned individual but only to restate the legal position on the issue. The author hopes that he would be proved wrong and indeed no reopening will ensue pursuant to the retrospective amendments under the Finance Act, 2012 but in the event of the situation being otherwise the law is too well clear to draw a conclusion. If the intent is really to ensure that no reopening is undertaken on grounds of these retrospective amendments that the 1961 Act has to be suitably amended to that effect and nothing less.

The author will also fail in the duty to ignore the fact that even the instruction dated 29.05.2012 reaffirms the parliamentary intent to proceed with the recovery from Vodafone in as much as the instruction states that the reopening may follow for cases which have been validated and the legal fraternity very well knows which is the only case for which the Finance Act, 2012 provides for a validation clause.