156 In A v Governor of Arbour Hill Prison, 157 Murray CJ affirms the common law position that judicial decisions as to what the law is apply retrospectively to facts which have already occurred. In this connection the learned Advocate-General tried to distinguish the previous decisions of the Supreme Court in Sha Mulchand & Co Ltd. v. Jawahar Mills Ltd. Bombay Gas Co. Ltd. v. Gopal Bhiva Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli and Nityanand M. Joshi v. Life Insurance Corporation of India as well as the decision given by a Division Bench of this court in Commissioner of Income-tax v. Western India Engineering Co Ltd., Since we find that the petitioner should succeed in his first prayer on the question whether the matter would be governed by sections 17and 29 of the Indian limitation Act.13. 1, who is the Commissioner of Income-tax, on January 29, 1970, dismissing the petitioner’s revision application filed under section 33A of the Indian Income-tax Act of 1922 and section 264(1) of the Income-tax Act of 1961, on the ground of limitation. In the alternative, the petitioner has prayed for a similar writ for setting aside the orders of assessment of is income for the assessment years 1961-62, 1962-63, 1963-64 as they have treated the expenditure incurred in connection with the issue of debentures as capital expenditure, to deductible from the gross income earned by the petitioner during the relevant account periods.2. The issue pertaied to the Assessment Year 1961-62, 1962-63, 1963-64, for which period the petitioner had incurred certain expenditure, however no deduction was claimed in respect of the same, relying upon the decision of this Court and other High Courts in respect of deductibility of such expenses. It was as early as 1921 that in In re Tata Iron & Steel Co. Ltd., the High Court relied upon the following observations of Mathew J. in Texas Land and Mortgage Co. v. Holtham :“The amount paid in order to raise the money on debentures, comes off the amount advanced upon the debentures, and, therefore, is so much paid for the cost of getting it, but there cannot be one law for a company having sufficient money to carry on all its operations and another which is content to pay for the accommodation. R. Ramnani appointed as member of Advance Ruling Authority, Maharashtra,How to seek Extension for AGM for year ended on 31.03.2020,Join GST & Income Tax Course at Upto 50% Discount,Digital GST Ready Reckoner (Book) by Taxguru Edu,Extend due date for GSTR 9 & 9C of Financial Year 2018-19,ICAI – Clear Assessment if applying for membership after 3 years,Decriminalise certain offences under GST Law: ICAI CMA,Permit ITC availment for period till 31.03.2020 upto 31.12.2020,Defer due date of implementation of E-Invoicing under GST. The order of the Commissioner dated January 29, 1970, found at annexure “D” is set aside, the delay in filing the revision applications is condoned and the commissioner is directed to proceed further in the matter and to dispose of all the revision applications preferred by the petitioner on merits.15. Short facts of the case which from the background of this petition are as under.
It is an admitted position that the original [assessment for all these three yeas were respectively made on February 25, 1963, February 14, 1964, and March 26, 1964. The petitioner responded to the show cause notice stating that the view taken by the Bombay and other High Courts as regards the allowance of expenditure was upset by the Supreme Court in the case of “India Cements Ltd.” and has finally laid down principles of law in that regard. The matter lay many on the file of the Commissioner for about 2 year, because the record of the case reveals that it was as late as October 7, 1968, that the the Commissioner issued a notice to the petitioner to show cause in writing on or before October 19, 1968, why the revision application filed by it should not be dismissed as time barred. But it cannot be said that the revision proceeding under section 33A and/or 264 of the Acts of 1922 and 1961 were inappropriate because under these sections the Commissioner has got wide power to pass such orders as he thinks fit. Vs. Commissioner of Income Tax” and held that such expenditure must be treated as revenue expenditure and therefore, deduction thereof should be given from the gross income earned by the concerned assessee. The Commissioner, however, after hearing the parties, gave his decision on January 29, 1970, refusing to condone the delay. For this reason the Commissioner dismissed the revision application filed by the petitioner on the ground of limitation. If in this connection a reference is made to the provisions of section 33A of the Act of 1922 and section 264 of the Act of 1961, it will be found that the Commissioner has got powers to admit revision applications made after the expert of the period of limitation of one year provided he is satisfied that the assessee concerned was prevented by sufficient cause from making the application within that period.
It is, therefore, obvious that it was this decision of the Supreme Court which really gave cause to the petitioner to move the Commissioner in revision. We thus find that the petitioner succeeds in obtaining the first relief claimed by it.
The Supreme Court had reversed the view taken by this Court and other High Courts in India and same was reported in the case “India Cements Ltd. In our opinion, therefore, the Commissioner in revision. Under these circumstances, it was neither reasonable nor judicious to hold that the petitioner had no sufficient cause to explain the delay. The petitioner has further pointed out that the decision given by the Supreme Court in India Cements Ltd., made a total difference and changed the whole law on the subject and, therefore, it approached the Commissioner by revision application soon after knowing about this decision of the Supreme Court.
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