Factsthatallthepetitionerschallengedtheretrospectivityamendment.to Section15)Otthekarnataka Agricultural Income-Tax Act, (Hereinafterreferred To As ‘The Act’ Fo v. Ultimately, As Observed By Us Hereinabove, The Learnedsingle Judge Allowed The Petitions

IN THR HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22 DAY OF JUNE 2016 PRESENT THR HON’BLE MR.JUSTICE JAYANT PATEL AND THR HON’BLE MR.JUSTICE B.SRBBNIVASKH GOWDA WRIT APPEAL NOS.3319.3324 OF 2004 (T;AIT) IN WA NOS.331921/2004: BETWEEN: 1.THERE STATE OF KARNATAKTHROUGH THR SKHCRETARYTHROUGH THR SKHCRETARY MINISTRY OF FINANCE VIDHANA SOUDHA, BANGALORE — 1. a2THER ADDITIONAL ASSISTANT COMMISSIONER OF AGRICULTURE INCOME TAX, VIRAJPET.| .. APPELLANTS (BY SRI ADITYA SONDHI, ADDL. AG &SMT. SHWETA KRISHNAPPA, GP)SMT. SHWETA KRISHNAPPA, GP) AND: M/S. KARDICOPPAL ESTATETHITHIMATHI.COORG, REPRESENTED BY ITS.PROPRIETORSRI. M.NACHAIAH CHIT TIAPPA RBSPONDENT| (BY SRI MANMOHAN P.N. ADV.). IN WA NO.3322/2004 BETWEEN: 1.THERE STATE OF KARNATAK THROUGH THE SKHCRETARY MINISTRY OF FINANCEFINANCE DBEPARTMENTVIDHANA SOUDHA,BANGALORE — 1.FINANCE DBEPARTMENTVIDHANA SOUDHA,BANGALORE — 1. a2THR DY. COMMISSIONER OFAGRICULTURE INCOME TAXHASSAN — 573 201.AGRICULTURE INCOME TAXHASSAN — 573 201. .. APPELLANTS (BY SRI ADITYA SONDHI, ADDL. AG &SMT. SHWETA KRISHNAPPA, GP)SMT. SHWETA KRISHNAPPA, GP) AND: SRI. K.V.GANGAR AJ 5O YEARS| COFRRBB PLANTBRMADIHALLI ESTATEBHARATHUR POST.H. HOSAKOTE HOBLIALUR TALUK. RBSPONDENT| (BY SRI MANMOHAN P.N. ADV.). IN WA NO.3323/2004 BETWEEN: 1.THR STATEB OF KARNATAKA THROUGH THE SKHCRETARY MINISTRY OF FINANCEFINANCK DBPARTMEBENVIDHANA SOUDHA,FINANCK DBPARTMEBENVIDHANA SOUDHA, BANGALORE — 1. a2THER ASST. COMMISSIONBR OF|AGRICULTURE INCOME TAXL CIRCLE, CHICKMAGALUR|AGRICULTURE INCOME TAXL CIRCLE, CHICKMAGALUR| APPELLANTS (BY SRI ADITYA SONDHI, ADDL. AG &SMT. SHWETA KRISHNAPPA, GP)SMT. SHWETA KRISHNAPPA, GP) AND: M/S. NANDINI ESTATEHAVALLI VILLAGE ALDUR POST CHIC KMAGALUR TALUKREP BY ITS MANAGING DIRECTORSRI. KANTHILAL43 YEARSS/O SRI. BHANIRAM RBSPONDENT| (BY SRI MANMOHAN P.N. ADV.). IN WA NO.3324/2004 BETWEEN: 1.THE DY. COMMISSIONER OFAGRICULTURE INCOME TAXHASSAN..AGRICULTURE INCOME TAXHASSAN.. a2THR STATEB OF KARNATAKATHROUGH THE SKHCRETARYMINISTRY OF FINANCEFINANCK DBPARTMEBNTVIDHANA SOUDRHBABANGALORE — 1.THROUGH THE SKHCRETARYMINISTRY OF FINANCEFINANCK DBPARTMEBNTVIDHANA SOUDRHBABANGALORE — 1. .. APPELLANTS (BY SRI ADITYA SONDHI, ADDL. AG &SMT. SHWETA KRISHNAPPA, GP) AND: M.S. VIJAYASHAN KARMALALI BSTATEMALALI POST, SAKALESHPUR. HASSAN.. RBSPONDENT| (BY SRI MANMOHAN P.N. ADV.) THESE WRIT APPEALS ARE FILED U/S 4 OF THE.KARNATAKA HIGH COURT ACI PRAYING TO SEI ASIDE|THR ORDER PASSBKD IN THR WRIT PRHTITION NOs.13394 13635-36/2000C/WWPNO.32321/2001.C/WWPNO.33891/2001C/WWPNO.41849/2001DATEKD16.09.2004. THESE APPEALS COMING ON FOR PRELIMINARY|HEARING THIS DAY,JAYANT PATEL J©, DELIVERED|THR FOLLOWING: JUDGMENT As in all these appeals common questions are to beconsidered, theyaltebeingconsideredsimultaneously. 2. All the appeals are directed against the orderdated 16.09.2003 passed by the learned Single Judge ofthis Court in the respective main petitions, whereby thelearned Single Judge has allowed the petitions byholding that the retrospective effect to the amendment under Section 1o of the Karnataka Agricultural IncomeTax Act, is contrary to the judgment of this Court inW.A.Nos.3795-3809/ 1998dated03.07.2002andjudgment of the Apex Court in AIR 1984 SC 1780 and.further consequential directions were issued.| 3. We have heard Mr.Aditya Sondhi, Addl.AdvocateGeneral|appearingforSmt.ShwetaKrishnappa, learned Government Pleader, for theappellants and Mr.Manmohan P.N., learned Counselappearing for the respondents. 4. At the outset, we may record some relevant beconsidered, theyaltebeingconsideredsimultaneously. 2. All the appeals are directed against the orderdated 16.09.2003 passed by the learned Single Judge ofthis Court in the respective main petitions, whereby thelearned Single Judge has allowed the petitions byholding that the retrospective effect to the amendment under Section 1o of the Karnataka Agricultural IncomeTax Act, is contrary to the judgment of this Court inW.A.Nos.3795-3809/ 1998dated03.07.2002andjudgment of the Apex Court in AIR 1984 SC 1780 and.further consequential directions were issued.| 3. We have heard Mr.Aditya Sondhi, Addl.AdvocateGeneral|appearingforSmt.ShwetaKrishnappa, learned Government Pleader, for theappellants and Mr.Manmohan P.N., learned Counselappearing for the respondents. 4. At the outset, we may record some relevant factsthat|allthepetitionersChallengedtheretrospectivityamendment.TO Section15)oT|theKarnataka Agricultural Income-Tax Act, (hereinafterreferred to as ‘the Act’ for the sake of brevity) and theyfurther prayed for the declaration that the said amendment|1Sprospective1n character.andconsequently, the assessment orders passed by theAssessing Officer be quashed. All the matters wereheard by the learned Single Judge and the learnedsingle Judge while examining the question as towhether|theamendment|couldbemade.withretrospective effect under Section 15 of the Act or not,mainly relied upon a decision of this Court inW.A.No.3795/1998 and allied matters decided on03.07.2002 and the earlier decision of the Apex Court incase ofD.Cawasjit & Co., Mysore Vs. The State ofMysore and another, reported at AIR 1984 SC 1780and the learned Single Judge further found that theretrospective amendment takes away the right of thepetitioners which cannot be done in the guise of curingthe non-existinglacunae.bythe.respondents. | Ultimately, as observed by us hereinabove, the learnedsingle Judge allowed the petitions. Oo. We may record that as in the impugneddecision, the learned Single Judge had also relied uponaDivisionBench|judgmentoT|thisCourt1nW.A.No.3795/1998—dated03.07.2002forthe.retrospective effect of the amendment under Section26(4) of the Act, and the said decision of this Court was_carried before the Apex Court. The present appealswere admitted at the relevant point of time. 6. However, when the present appeals have comeup for final hearing, learned Addl. Advocate Generalappearing for the appellants mainly contended that thedecision of the Division Bench of this Court in/W.A.No.3795/1998 and allied matters, which was themain basis of the impugned judgment of the learned single Judge, has been set aside and reversed by theApex Court in its decision in the case of|AssistantCommissioner of Agricultural Income Tax andOthers Vs. Netley ‘B’ Estate and Others|reported at(2015) 11 SCC page 462. It was submitted that the|present appeals may be allowed by this Court by settingaside the impugned judgment of the learned SingleJudge. /. Whereas Mr.Manmohan P.N, learned Counselappearing for the respondents submitted that it is truethat the learned Single Judge relied upon the earlierdecision of the Division Bench of this Court in/W.A.No.3795/1998 and allied matters, but in hissubmission the learned Single Judge also relied uponanother decision of the Apex Court in the case ofD.Cawasjit & Co., Mysore Vs. The State of Mysoreand anotherreported at AIR 1984 SC 1780, which has single Judge, has been set aside and reversed by theApex Court in its decision in the case of|AssistantCommissioner of Agricultural Income Tax andOthers Vs. Netley ‘B’ Estate and Others|reported at(2015) 11 SCC page 462. It was submitted that the|present appeals may be allowed by this Court by settingaside the impugned judgment of the learned SingleJudge. /. Whereas Mr.Manmohan P.N, learned Counselappearing for the respondents submitted that it is truethat the learned Single Judge relied upon the earlierdecision of the Division Bench of this Court in/W.A.No.3795/1998 and allied matters, but in hissubmission the learned Single Judge also relied uponanother decision of the Apex Court in the case ofD.Cawasjit & Co., Mysore Vs. The State of Mysoreand anotherreported at AIR 1984 SC 1780, which has not been upset by the Apex Court, in the subsequentdecision in case ofNetley ‘B’ Estate-(Supra) relied uponby the learned Addl. Advocate General for theappellants. It was also submitted that in the decisionbefore the Apex Court including the decision of theDivision Bench of this Court in W.A.No.3795/1998 andallied matters, the question was for the retrospectivity ofthe amendment made by the State legislature undersection 26(4) of the Act, whereas in the present case theamendment made under Section 15 (1) of the Act, was.the subject matter and therefore, he submitted thatwhen the vested rights of the respondents-originalpetitioners was taken away by the amendment undersection 15 of the Act, it cannot be said that the issues)stand covered and the view taken by the learned SingleJudge deserves to be quashed. 8. We may at the outset mention that since thedecision of the Apex Court in case ofNetley ‘B’ Estate(supra) is already reported, we may not in detail dealwith the facts of the case. In the same manner, thedecision ot the Division Bench oft this Court inW.A.No.3795/98 and allied matters is also reported inthe Law Journal ati(2002) 257 ITR page 532)equivalent in(2002) AIR Kant R 2149. Hence, we may|not in detail deal with the facts of those cases except tothe extent touching to the present matters. 9. Section 15 of the Act, had prevailed earlier and.Section 15 after amendment of 1999 reproduced by thelearned Single Judge in his judgment at para-8 may berelevant for the present appeals and therefore they arereproduced as under: “sec. 15 before amendment read as under; “Sec. 15. Carrying forward of loss. Where any person sustains a loss inagricultural income in any year, the loss shallbe carried forward to the following year andset off against the agricultural income for that!year and tf it cannot be wholly so set off, the|amount of loss not so set off shall be carriedforward to the following year and so on, but no|loss shall be carried forward for more than six)years.” “Provided that, in case of loss sustainedbefore the commencement of this Act, thissection shall apply only to such loss as was|sustained in the previous year immediately|before such commencements. Provided further that no loss, which hasnot been determined in pursuance of a return)filed under Sec. 18 shall be carried forward andset off under this section. Provided (also) that where depreciationallowance is also to be carried forward underproviso (2) to clause (e) of section 5, effect shall|first be given to the provisions of this Section.” The said section is amended in terms ofthe amendment Act 1999 with retrospective|effect. The said section reads as under; “sec. 15. Carrying forward of loss. “Provided that, in case of loss sustainedbefore the commencement of this Act, thissection shall apply only to such loss as was|sustained in the previous year immediately|before such commencements. Provided further that no loss, which hasnot been determined in pursuance of a return)filed under Sec. 18 shall be carried forward andset off under this section. Provided (also) that where depreciationallowance is also to be carried forward underproviso (2) to clause (e) of section 5, effect shall|first be given to the provisions of this Section.” The said section is amended in terms ofthe amendment Act 1999 with retrospective|effect. The said section reads as under; “sec. 15. Carrying forward of loss. Where any person sustains a loss inagricultural income in any year, the loss shallbe carried forward to the following year andset off against the agricultural income for that!year and tf it cannot be wholly so set off, the|amount of loss not so set off shall be carriedforward to the following year and so on, but no|loss shall be carried forward for more than six)yearssubject to the condition that thereturn of loss in the prescribed form andverified in the prescribed manner andcontaining such other particulars as maybe prescribed is filed well within the pertod specified in sub-section (1) of Sec.18or within the such extended time grantedbytheAssistantCommissionerofAgricultural Income Tax or the DeputyCommissioner of Agricultural Income Taxas the case may be is filed and nothingcontained in sub-section (3) of Sec. 18Shall apply in this regard.” Provided that, in case of loss sustainedbefore the commencement of this Act, thissection shall apply only to such loss as was|sustained in the previous year immediately|before such commencements. Provided further that no loss, which hasnot been determined in pursuance of a return)filed under Sec. 18 shall be carried forward andset off under this section. Provided (also) that where depreciationallowance is also to be carried forward under proviso (2) to clause (e) of section 5, effect shallfirst be given to the provisions of this Section.” 10. Subject amendment is shown in block wordswhich pertains for regulating the right of set olf of twoways, by way of the verification in the prescribedmanner of the loss shown in the return and the'overriding effect is given to Section 18 (3) of the Actwhich provided for filing of return. 11. The contention raised by the Addl. Advocate|General appearing for the appellants that the matter iscovered by the decision of the Apex Court in case ofNetley ‘B’ Estate(Supra) may have to be examined in.light of the distinguishing circumstances canvassed bythe learned Counsel for the respondents. 12. It is an undisputed position that the learnedsingle Judge in the impugned order has followed two decisions. One is of the Division Bench of this Court inW.A.No.3795/1998 and another is the decision of theApex Court in the case of|Cawasji(Supra) reported at|AIR 1984 SC 1778. In the operative portion of the|order of the learned Single Judge at para-12, it hasbeen observed and directed as under: “In these circumstances, these petitions areallowed. It is held that Retrospective effect to theamendment to Sec.15 is contrary to the judgmentof the Court in WA No.3795/ 1998 dtd 3-7-2002and the judgment of the Apex Court in AIR 1984SC 1780. Impugned orders are consequently setaside. Liberty is reserved to the respondents toproceed against the petitioner without referring tothe amended Act in q manner known to law and|uf available to them in law.” 13. When the view taken by the Division Bench of this Court in the case of.Netley ‘B’ Estate' (Supra) 1S reversed by the Apex Court, the final view taken by theApex Court will hold the field and not the view taken bythe Division Bench of this Court. Further in the verydecision of the Apex Court in case ofNetley ‘B’ Estate(supra), the decision of the Apex Court in case ofCawasji(Supra) has been considered and it has been|distinguished by the Apex Court as observed in para-12.which reads as under:| 13. When the view taken by the Division Bench of this Court in the case of.Netley ‘B’ Estate' (Supra) 1S reversed by the Apex Court, the final view taken by theApex Court will hold the field and not the view taken bythe Division Bench of this Court. Further in the verydecision of the Apex Court in case ofNetley ‘B’ Estate(supra), the decision of the Apex Court in case ofCawasji(Supra) has been considered and it has been|distinguished by the Apex Court as observed in para-12.which reads as under:| “12. The Revenue is in appeal before us. It|was argued by the learned counsel that the|factualsituationin|Cawas]t|CAaASLUaScompletely different from the factual situation|in the present case and that _ thereforeCawasji case being distinguishable, cannot|be followed. The learned counsel also referred|to various other judgments which we willadvert to a little later. To buttress this)submission, he said that all that was done onthe facts in the present case was that the|legislature retrospectively changed the basis| of the law of assessment of firms regarding|the income received after they were dissolved,which is something that the legislature 1s|competent to do.” 14. At this stage, we may also record that whileexamining the judicial scrutiny, earlier decision of the Division Bench of this Court in W.A.No.3795/1998, the Apex Court alter referring to various decisions, atparagraphs 18 to 23 has observed thus: “18. Finally, a number ofprinciples were laid down inpara 56 as follows: -para 56 as follows: - (Indian Aluminium Co. case, SCC pp.662-63, para 56) "06. From a resume of the above decisions the following|principles would emerge:principles would emerge: (1) The adjudication of the rights of the parties is theessential judicial function. Legislature has to laydown the norms of conduct or rules which will governessential judicial function. Legislature has to laydown the norms of conduct or rules which will govern the parties and the transactions and require the courtto give effect to them; (2) The Constitution delineated delicate balance in theexercise of the sovereign power by the legislature,executive and Judiciary; |exercise of the sovereign power by the legislature,executive and Judiciary; | (3) In a democracy governed by rule of law, thelegislature exercises the power under Articles 245.and 246 and other companion articles read with theentries in the respective lists in the Seventh Scheduleto make the law which includes power to amend thelaw.legislature exercises the power under Articles 245.and 246 and other companion articles read with theentries in the respective lists in the Seventh Scheduleto make the law which includes power to amend thelaw. (4) Courts in their concern and endeavour to preserve|judicial power equally must be guarded to maintainthe delicate balance devised by the Constitutionbetween the three sovereign functionaries. In orderthat rule of law permeates to fulfil constitutionalobjectives of establishing an egalitarian social order,the respective sovereign functionaries need free playin theirjoints so that the march of social progress andorder remains unimpeded. The smooth balance builtwith delicacy must always be maintained;|judicial power equally must be guarded to maintainthe delicate balance devised by the Constitutionbetween the three sovereign functionaries. In orderthat rule of law permeates to fulfil constitutionalobjectives of establishing an egalitarian social order,the respective sovereign functionaries need free playin theirjoints so that the march of social progress andorder remains unimpeded. The smooth balance builtwith delicacy must always be maintained;| (5) In its anxiety to safeguard judicial power, it 1s|unnecessary to be overzealous and conjure upincursion into the judicial preserve invalidating thevalid law competently made;unnecessary to be overzealous and conjure upincursion into the judicial preserve invalidating thevalid law competently made; (6) The court, therefore, needs to carefully scan the law to|find out;|find out;| (5) In its anxiety to safeguard judicial power, it 1s|unnecessary to be overzealous and conjure upincursion into the judicial preserve invalidating thevalid law competently made;unnecessary to be overzealous and conjure upincursion into the judicial preserve invalidating thevalid law competently made; (6) The court, therefore, needs to carefully scan the law to|find out;|find out;| (a) whether the vice pointed out by the court and|invalidity suffered by previous law is cured complyingwith the legal and constitutional requirements; (b)whether the legislature has competence to validatethe law; (c) whether such validation ts consistent withthe rights guaranteed in Part III of the Constitution.invalidity suffered by previous law is cured complyingwith the legal and constitutional requirements; (b)whether the legislature has competence to validatethe law; (c) whether such validation ts consistent withthe rights guaranteed in Part III of the Constitution. (7) The court does not have the power to validate an|invalid law or to legalise impost of tax illegally madeand collected or to remove the norm of invalidation orprovide a remedy. These are notjudicial functions butthe exclusive province of the legislature. Therefore,they are not encroachment on judicial power.invalid law or to legalise impost of tax illegally madeand collected or to remove the norm of invalidation orprovide a remedy. These are notjudicial functions butthe exclusive province of the legislature. Therefore,they are not encroachment on judicial power. (S) In exercising legislative power, the legislature by mere|declaration, without anything more, cannot directlyoverrule, revise or override a Judicial decision. It candeclaration, without anything more, cannot directlyoverrule, revise or override a Judicial decision. It can render judicial decision ineffective by enacting validlawOnthetopic within itslegislativefieldfundamentally altering or changing its characterretrospectively. The changed or altered conditions aresuch that the previous decision would not have beenrendered by the court, if those conditions had existedat the time of declaring the law as invalid. It is alsoempowered to give effect to retrospective legislationwith a deeming date or with effect from a particulardate. The legislature can change the character of thetax or duty from impermissible to permissible tax butthe tax or levy should answer such character and thelegislature 1s competent to recover the invalid taxvalidating such a tax on removing the invalid base forrecovery from the subject or render the recovery fromthe State ineffectual. It is competent for the legislatureto enact the law with retrospective effect andauthorise its agencies to levy and collect the tax onthat basis, make the imposition of levy collected andrecovery of the tax made valid, notwithstanding thedeclaration by the court or the direction given forrecovery thereof. (9) The consistent thread that runs through all thedecisions of this Court is that the legislature cannotdirectly overrule the decision or make a direction asnot binding on it but has power to make the decisionineffective by removing the base on which thedecision was rendered, consistent with the law of theConstitution|andthelegislatureMUST havecompetence to do the same."decisions of this Court is that the legislature cannotdirectly overrule the decision or make a direction asnot binding on it but has power to make the decisionineffective by removing the base on which thedecision was rendered, consistent with the law of theConstitution|andthelegislatureMUST havecompetence to do the same." (9) The consistent thread that runs through all thedecisions of this Court is that the legislature cannotdirectly overrule the decision or make a direction asnot binding on it but has power to make the decisionineffective by removing the base on which thedecision was rendered, consistent with the law of theConstitution|andthelegislatureMUST havecompetence to do the same."decisions of this Court is that the legislature cannotdirectly overrule the decision or make a direction asnot binding on it but has power to make the decisionineffective by removing the base on which thedecision was rendered, consistent with the law of theConstitution|andthelegislatureMUST havecompetence to do the same." 19, We are concerned in this case directly with principles|& and 9. On facts, the judicial decision in Cardozacase (1997) 227 ITR 421 (Kant) has been renderedineffective by enacting a valid law on a topic withinthe legislative field which fundamentally alters orchanges the character of legislation retrospectively.The changed or altered conditions are such that theprevious decision would not have been rendered bythe court if those conditions had existed at the time ofdeclaring the law as invalid. The legislature has notdirectly over-ruled the decision of any court but hasonly rendered, as has been stated above, suchdecision ineffective by removing the basis on whichthe decision was arrived at. —& and 9. On facts, the judicial decision in Cardozacase (1997) 227 ITR 421 (Kant) has been renderedineffective by enacting a valid law on a topic withinthe legislative field which fundamentally alters orchanges the character of legislation retrospectively.The changed or altered conditions are such that theprevious decision would not have been rendered bythe court if those conditions had existed at the time ofdeclaring the law as invalid. The legislature has notdirectly over-ruled the decision of any court but hasonly rendered, as has been stated above, suchdecision ineffective by removing the basis on whichthe decision was arrived at. — 20. The learned counsel for the respondent cited threedecisions before us. Panchi Devi v. State of Rajasthan[(2009) 2 SCC 5S89/, SCC para 9 was cited before usfor the proposition that a delegated legislation beingordinarily prospective in nature should not beinterpreted to give a retrospective effect to take awaya right or liability which was created for the first time.In the present case, we are concerned with an Act ofthe Legislature and not delegated legislation. No rightor liability is created for the first time - the only thingdone in the present case 1s that a firm 1s by fiction oflaw continued as such for certain purposes ofassessment even after its dissolution. Equally, noquestion of interpretation qua retrospectivity arises.The legislature in the present case has expresslymade the impugned provision retrospective. On allthese counts, this Judgment is distinguishable andwould not apply at all here.decisions before us. Panchi Devi v. State of Rajasthan[(2009) 2 SCC 5S89/, SCC para 9 was cited before usfor the proposition that a delegated legislation beingordinarily prospective in nature should not beinterpreted to give a retrospective effect to take awaya right or liability which was created for the first time.In the present case, we are concerned with an Act ofthe Legislature and not delegated legislation. No rightor liability is created for the first time - the only thingdone in the present case 1s that a firm 1s by fiction oflaw continued as such for certain purposes ofassessment even after its dissolution. Equally, noquestion of interpretation qua retrospectivity arises.The legislature in the present case has expresslymade the impugned provision retrospective. On allthese counts, this Judgment is distinguishable andwould not apply at all here. 21.[t was then contended based on Tata Motors Ltd. v. |State of Maharashtra |[(2004) 5 SCC 783/ from para12 thereof, that withdrawal with retrospective effectState of Maharashtra |[(2004) 5 SCC 783/ from para12 thereof, that withdrawal with retrospective effect of relief properly granted by statute to an assesseewhich the assessee has lawfully enjoyed as a vestedStatutory right cannot be taken away unless there bestrong and exceptional circumstances Justifying thesaid withdrawal. On facts again, this judgment doesnot apply. There is no withdrawal of any right whichhas become a vested statutory right which deprives:an assessee of anything in the present case. AS hasbeen noted above, what was taxable in the hands ofa recipient assessee is now taxable in the hands of adissolved firm post-dissolution only for certainpurposes. This judgment also therefore, cannot haveany application in the present factual scenario. 22. Lastly, the judgment in Hardev Motor Transport v.|State of M. P. [(2006) 8 SCC 613] was cited before us.Para 31 thereof was read out in support of theproposition that by inserting an explanation in aStatute, the main provision of the Act cannot bedefeated or enlarged. Applying this test to the presentcase, it is clear that in 1997 both the main provision,that is Section 26(4), as well as explanation wereadded retrospectively. The main provision has beenState of M. P. [(2006) 8 SCC 613] was cited before us.Para 31 thereof was read out in support of theproposition that by inserting an explanation in aStatute, the main provision of the Act cannot bedefeated or enlarged. Applying this test to the presentcase, it is clear that in 1997 both the main provision,that is Section 26(4), as well as explanation wereadded retrospectively. The main provision has been expanded|To include dissolved firmsand.the|explanation creates a legal fiction in furtherance ofthe main provision by deeming a dissolved firm to bein existence as an assessee for certain purposes. This:being the case, this Judgment would also have noapplication to the present factual scenario. 23.For these reasons, we set aside the impugnedjudgment dated 03.07.2002 (2002) 257 ITR 532(Kant.) and allow the appeals. There shall be noorders as to costs.”judgment dated 03.07.2002 (2002) 257 ITR 532(Kant.) and allow the appeals. There shall be noorders as to costs.” The aforesaid, in our view, leads no manner of doubtthat the view taken by the Division Bench of this Courtcan no more be pressed in service, in view of thedecision of the Apex Court. Further, while examiningthe question of retrospectivity of the amendment theearlier decision of the Apex Court in case ofCawasjt(supra) would also be of no help to the originalpetitioner-respondent herein for supporting the view taken by the learned Single Judge. Under thesecircumstances, as such, in view of the above referred|decision of the Apex Court in case ofNetley ‘B’ Estatethe order passed by the learned Single Judge forstriking down retrospectivity of the amendment basedon the above referred judgments of the Division Benchof this Court as well as the Apex Court in case ofCawasji(Supra) cannot be sustained. 15. The attempt made by the learned Counsel forthe respondent to contend that in the decision beforethe Apex Court, the retrospective amendment madeunder Section 26(4) of the Act was under challenge andnot the amendment made under Section 15 of the Act,|cannot be countenanced for two reasons: One is that!the learned Single Judge in the impugned order hasbeen fully guided by the earlier decision of the Division Bench of this Court and decision of the Apex Court incase of.Cawasjt(Supra) and the second reason is thatthere is no material difference in the effect of earlier|section 26 (4) of the Act to the rights of the assessee incontext to the principal Section 26 of the Act, as itexisted prior to the amendment made in comparison toSection 15 as it existed earlier and amendment made'under section 105 vis-a-vis the rights of the assessee sofar as carrying forward of the loss. | Bench of this Court and decision of the Apex Court incase of.Cawasjt(Supra) and the second reason is thatthere is no material difference in the effect of earlier|section 26 (4) of the Act to the rights of the assessee incontext to the principal Section 26 of the Act, as itexisted prior to the amendment made in comparison toSection 15 as it existed earlier and amendment made'under section 105 vis-a-vis the rights of the assessee sofar as carrying forward of the loss. | 16. The attempt to contend that the retrospectiveamendment takes away the right given to the petitionersunder Section 15 as existed prior to the amendment Actcan also not be countenanced because the amendment|is for regulating the right of carrying forward of thelosses of the agricultural income and is not for altering the rights of carrying forward of losses of agriculturalincome with the assessee._ 17. Be it recorded that there is no alteration in theright to carry forward losses with the outer limit of sixyears but the right of carrying forward of the losses ofthe agricultural income is only regulated by theproposed amendment. 18. Under the circumstances, we do not agree withthe view taken by the learned Single Judge that theretrospective amendment takes away the right given tothe petitioners. 19. In view ot the atoresaid observation anddiscussion, the impugned judgment of the learnedsingle Judge deserves to be set aside. Hence the sameis set aside. The petitions shall stand dismissed. 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