A retrospective amendment of a statute may indicate a different intention which excludes the application of Section 6 of the General Clauses Act, thereby rendering notices issued without the approval of the Commissioner invalid.

Judgment

HIDAYATULLAH, J. : This is an appeal by the Commissioner of Income-tax with a certificate against the judgment and order of the High Court at Patana answering two questions of law referred to it under S. 66(1) of the Income-tax Act by the Tribunal, in the negative. Those questions were :

"1. Whether in the circumstances of the case assessment proceedings were validly initiated under S. 34 of the Indian Income-tax Act?

2. If so, whether in the circumstances of the case the amount received from interest on arrears of agricultural rent was rightly included in the income of the assessee?"

2. The assessee, the Maharaja Pratapsingh Bahadur of Gidhaur had agricultural income from his zamindari for the four assessment years, 1944-45 to 1947-48. In assessing his income to income-tax, the authorities did not include in his assessable income interest received by him on arrears of rent. This was presumably so in view of the decision of the Patna High Court. When the Privy Council reversed the view of law taken by the Patna High Court in Commissioner of Income-tax v. Kamakhya Narayan Singh, 1948-16 ITR 325 the Income-tax Officer issued notices under S. 34 of the Indian Income-tax Act for assessing the escaped income. These notices were issued on August 8, 1948. The assessments after the returns were filed were completed on August 26, 1948. Before the notices were issued, the Income-tax Officer had not put the matter before the Commissioner for his approval, as the section then did not require it, and the assessments were completed on those notices. Section 34 was amended by the Income-tax and Business Profits Tax (Amendment) Act, 1948 (No. 48 of 1948), which received the assent of the Governor-General on September 8, 1948. The appeals filed by the assessee were disposed of on September 14 and 15, 1951, by the Appellate Assistant Commissioner, before whom no question as regards the validity of the notices under S. 34 was raised. The question of the validity of the notices without the approval of the Commissioner appears to have been raised before the Tribunal for the first time. In that appeal, the Accountant Member and the Judicial Member differed, one holding that the notices were invalid and the other, to the contrary. The President agreed with the Accountant Member that the notices were invalid, and the assessments were ordered to be set aside.

3. The Tribunal then stated a case and raised and referred the two questions, which have been quoted above. The High Court agreed with the conclusions of the majority, and the present appeal has been filed on a certificate granted by the High Court.

4. Section 34, as it stood prior to the amendment Act No. 48 of 1948, did not lay any duty upon the Income-tax Officer to seek the approval of the Commissioner before issuing a notice under S. 34. The amending Act by its first section made Ss. 3 to 12 of the amending Act retrospective by providing "sections 3 to 12 shall be deemed to have come into force on the 30th day of March, 1948 .........." Section 8 of the amending Act substituted a new section in place of section 34, and in addition to textual changes with which we are not concerned also added a proviso to the following effect :

"Provided that :

(1) the Income-tax Officer shall not issue a notice under this sub-section unless he has recorded his reasons for doing so and the Commissioner is satisfied on such reasons that it is a fit case for the issue of such notice."

The question is whether the notices which were issued were rendered void by the operation of this proviso. The Commissioner contends that S. 6 of the General Clauses Act, particularly cls. (b) and (c) saved the assessments as well as the notices. He relies upon a decision of the Privy Council in Lemm v. Mitchell, 1912 AC 400, Eyre v. Wynn-Mackenzie, 1896-1 Ch 135 and Butcher v. Henderson, (1868) 3 QB 335 in support of his proposition. The last two cases have no bearing upon this matter; but strong reliance is placed upon the Privy