๐๐๐ข๐ง๐ ๐ญ๐ก๐ย ๐ฅ๐๐ ๐ข๐ฌ๐ฅ๐๐ญ๐ข๐ฏ๐ ๐ฉ๐จ๐ฐ๐๐ซ ๐จ๐ ๐ญ๐ก๐ ๐๐๐ ๐ข๐ฌ๐ฅ๐๐ญ๐ฎ๐ซ๐๐ฌ ๐๐ฎ๐๐ฃ๐๐๐ญ ๐ญ๐จ ๐ญ๐ก๐ ๐๐จ๐ง๐ฌ๐ญ๐ข๐ญ๐ฎ๐ญ๐ข๐จ๐ง, ๐๐ญ ๐๐๐ง๐ง๐จ๐ญ ๐๐ง๐๐๐ญ ๐ ๐๐๐ญ๐ซ๐จ๐ฌ๐ฉ๐๐๐ญ๐ข๐ฏ๐ ๐จ๐ซ ๐๐ซ๐จ๐ฌ๐ฉ๐๐๐ญ๐ข๐ฏ๐ ๐๐๐ฐ ๐ฐ๐ก๐ข๐๐ก ๐๐๐ค๐๐ฌ ๐๐ฐ๐๐ฒ ๐๐ง๐ฒ ๐๐ข๐ ๐ก๐ญ ๐๐ฎ๐๐ซ๐๐ง๐ญ๐๐๐ ๐๐ฒ ๐๐ซ๐ญ๐ข๐๐ฅ๐๐ฌ ๐ ๐ญ๐จ ๐๐: ๐๐
Justice Syed Mansoor Ali Shah has given another jurisprudentially rich judgment wherein he has held that the legislative power the legislatures under Article 142 of the Constitution is very broad and wide but it is subject to the Constitution. The Constitution under Article 8ย ย imposes a restriction on the legislatures, which means that no law, whether retrospective or prospective, can be enacted in derogation of the fundamental rights guaranteed under Articles 9 to 29 of the Constitution.
This ruling came in the background of a case wherein the Parliament had introduced a proviso with retrospective effect through finance Act, 2019, and reduced the 10% tax concession given to companies to 5% for the purchase and installation of machinery in the year of 2019 or before that. Previously, the Parliament had extended this concession till 2021 butย the 2019 amendment brought it back to 2019. The question arose that was this amendment applicable to those companies who had purchased and installed the machinery by 30th June, 2019?. And what about those companies who had purchased the machinery by 30th June, 2019 but had not installed yet?
In this context the Court analyzed the concept of past and close transaction and vested rights or already accrued rights. The Court also analyzed that how and when the legislatures can take away an already accrued right or can reopen a past and close transaction. The Court held that there is no bar on the legislative power of the legislatures to enact a retrospective or prospective law which takes away the already accrued rights or reopens a past and close transaction. However, Article 8 of the Constitution fetters this power of the legislatures to the extent of fundament rights. The legislatures cannot take away any of these rights by any law either retrospective or prospective.
The Court further held that vested right is the one where all the facts which are required by law to establish that right have accrued. Inchoate or contingent right cannot be said to be a vested right.ย Similarly, a past and close transaction is the one where a right has been exercised or can be deemed to have been exercised by operation of law under specific circumstances on a specific occasion.
In the case in hand, the issue was with regard to past and close transaction and vested rights as claimed by the companies before the Court. The Court held that the Parliament has the power to enact a retrospective law and it has done so competently. Thus, no favor can be granted on this ground. However, the Court ruled with regard to those companies who had purchased and installed the machinery by 30th June, 2019, that the proviso which reduced the concession from 10 to 5% is discriminatory as they were treated differently from other companies which had availed the 10% concession on the same conditions. To the extent of those who had purchased the machinery in the said period but had not installed it were said to be different from others and so were treated them.
c.p._824_k_2023
