K. Vinod Chandran, CJ.—The batch of writ petitions challenge notices issued under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’) and some of them also challenge the order issued under Section 144 read with Section 147 of the Act and the notice of demand issued pursuant to the assessment orders.

2. The question of law raised in the writ petitions, filed under Article 226 of the Constitution of India, is as to whether sub-section (5A) of Section 45 of the Act; inserted by the Finance Act, 2017, with effect from 01.04.2018, apply retrospectively. The petitioners also contend that if it is held to be prospective, as is the consequence of the express words employed in the Finance Act, then it would violate Article 14 of the Constitution of India on the ground of invidious discrimination between the same class of persons. It is also argued that sub-section (5A) has been brought into the Income Tax Act to remove unintended consequences of the earlier provision for computation of capital gains on a conjoint reading of Sections 2(47)(v), 45 & 48. In such circumstances, the same should be considered as retrospective, despite the recitals in the Finance Act indicating it to be prospective. Insofar as the orders passed, which were also challenged in some of the writ petitions, the challenge made is to the very jurisdiction exercised by the Assessing Officer; relying on the judgment of the Hon’ble Supreme Court in Commissioner of Income Tax vs. Balbir Singh Maini; (2018) 12 SCC 354.

3. We heard Shri D.V.Pathy, learned counsel for the writ petitioners and Dr. K.N.Singh, learned Additional Solicitor General, instructed by Smt. Archana Sinha, learned senior standing counsel for the Income Tax Department.

4. In the case of Balbir Singh Maini (supra) at paragraph-3 the following questions of law were framed, which are extracted hereinbelow:—

“(i) Whether the transactions in hand envisage a “transfer” exigible to tax by reference to Section 2(47)(v) of the Income Tax Act, 1961 read with Section 53-A of the Transfer of Property Act, 1882?

(ii) Whether the Income Tax Appellate Tribunal, has ignored rights emanating from the JDA, legal effect of non-registration of JDA, its alleged repudiation, etc.?

(iii) Whether “possession” as envisaged by Section 2(47)(v) and Section 53-A of the Transfer of Property Act, 1982 was delivered, and if so, its nature and legal effect?

(iv) Whether there was any default on the part of the developers, and if so, its effect on the transactions and on exigibility of tax?

(v) Whether amount yet to be received can be taxed on a hypothetical assumption arising from the amount to be received?”

5. The Hon’ble Supreme Court in paragraph 30 and 31, answered the aspect relevant to this case as follows:—

“30. In the facts of the present case, it is clear that the income from capital gain on a transaction which never materialised is, at best, a hypothetical income. It is admitted that for want of permissions, the entire transaction of development envisaged in the JDA fell through. In point of fact, income did not result at all for the aforesaid reason. This being the case, it is clear that there is no profit or gain which arises from the transfer of a capital asset, which could be brought to tax under Section 45 read with Section 48 of the Income Tax Act.

31. In the present case, the assessee did not acquire any right to receive income, inasmuch as such alleged right was dependent upon the necessary permissions being obtained. This being the case, in the circumstances, there was no debt owed to the assessees by the developers and therefore, the assessees have not acquired any right to receive income under the JDA. This being so, no profits or gains "arose" from the transfer of a capital asset so as to attract Sections 45 and 48 of the Income Tax Act.”

6. The binding declaration of the above decision is insofar as, unless the income from capital gains of a transaction has actually materialized; there is no ques