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Income Tax Appellate Tribunal, DELHI BENCH “G”, NEW DELHI
Before: SHRI H.S. SIDHU
this common order for the sake of convenience and brevity.
First we deal with for AY 1999-2000 wherein the following grounds have been raised. i) Whether on the facts and circumstances of the case the Ld. CIT(A) has erred in deleting the addition of Rs. 1,66,77,703/- made by the AO account of disallowances deduction u/s. 80HHC of the I.T. Act, 1961, by following the judgment of Hon’ble Gujarat High Court in the case of Avani Exports vs. Commissioner of Income Tax (2012) 348 ITR 0391, thereby quashing the impugned retrospective amendment of section 80HHC(3), as inserted by taxation laws (second amendment)
Act, 2005? ii) The appellant craves leave to amend or alter all or any of the aforesaid grounds of appeal and amend, alter or add any other ground of appeal.
2.1 In other Appeal i.e. (AY 2004-05), identical issue is involved and similar grounds have been raised, the only difference is in the figures involved.
The brief facts of the case are that the Assessee is a dealer in home furnishing textile and bulk of the turnover is on account of export.
As against the returned income of Rs. 4,13,293/- the income was assessed u/s. 143(3)/148 of the Income Tax Act, 1961 vide order dated 20.12.2006 at an income of Rs. 1,70,91,000/- after making addition of Rs. 1,66,77,703/- on account of disallowance of claim u/s. 80HHC in view of amended provisions of Section 80HHC as per taxation law amendment 2005.
Against the assessment order dated 20.12.2006, the assessee appealed before the Ld. CIT(A), who vide his impugned order dated 28.2.2014 has deleted the addition in dispute and allowed the appeal of the assessee by respectfully following the order of the Hon’ble Gujarat High Court in the case of Avani Exports vs. Commissioner of Income Tax (2012) 348 ITR 0391.
Aggrieved with the aforesaid order of the Ld. CIT(A), the Revenue is in appeal before the Tribunal.
Ld. Sr. DR relied upon the orders of the authorities below and reiterated the grounds of appeal raised in the appeals.
In these cases, Notice of hearing to the assessee were sent by the Registered AD post, in spite of the same, assessee, nor its authorized representative appeared to prosecute the matter in dispute, nor filed any application for adjournment. Keeping in view the facts and circumstances of the present case and the issue involved in the present Appeals, we are of the view that no useful purpose would be served to issue notice again and again to the assessee, therefore, we are deciding the present appeals exparte qua assessee, after hearing the Ld. DR and perusing the records.
We have heard Ld. Sr. DR and perused the relevant records available with us, especially the orders of the revenue authorities. We find that Ld. CIT(A) has elaborately discussed the issue in dispute vide para no. 8.1 to 8.6 in the impugned Order which reads as under:- 3 “8.1 In this case, as against the returned income of Rs.4,13,293/- the income was assessed u/s 143(3)/148 vide order dated 20.12.2006 at an income of Rs.l,70,91,000/- after making addition of Rs.l,66,77,703/- on account of disallowance of claim uls 80HHC in view of amended provision of Section 80HHC as per taxation law amendment 2005. The Appellant had stated before the Assessing Officer that as per the amended provisions, deduction u/s 80HHC was not available to the Assessee as against earlier claim of Rs.1,66,77,703/- in the original Return of Income. It was stated by the Appellant that the amended provisions with retrospective effect from 01.04.98 were being contested before the Hon'ble Supreme Court by the Exporters Association but the decision was awaited and that the Assessee reserved the right to seek relief in case the Supreme Court decided against the amended provisions. It was also. claimed that the disallowance of the claim u/s 80HHC was unconstitutional and discriminatory. However, in . view of the amended provisions, the Assessing Officer disallowed the deduction claimed u/s 80HHC which was not allowable as per the amended provisions of Section 80HHC amounting to Rs.1,66,77,703/-.
8.2 It has been submitted by Sh. P.N. Chawla, Advocate, the Learned Counsel of the Appellant that in view of the fact that a very large number of Special Writ Petition were filed before several High Courts in India, the Hon'ble Supreme Court clubbed all the petitions and transferred them to Gujarat High Court for its decision on the subject "Whether retrospective amendment is discriminatory to exporters whose turnover was more than 10 crores.". It has been further submitted by the Ld. Counsel that the Hon'ble High Court in the case of Avani Exports & Others vs. CIT Rajkot & Others decided on 16.08.2012 that amendment made in Finance Act, 2005 in Section 80HHC was discriminatory in nature and as such was illegal. In view of the judgment of the Hon'ble Gujarat High Court, it was requested that the addition ofRs.1,66,77,703/- be deleted.
8.3 I have carefully perused the judgment of the Hon'ble Gujarat High Court in the case of Avani Exports vs. CIT, 348 ITR 391. It is seen from the first Para of the order of the Hon'ble Court that the Hon'ble Supreme Court had transferred these matters pending before various High Courts to the Hon'ble Gujarat High Court.
The first Para of the Order of the Hon'ble Gujarat High Court is as under :-
"All these writ applications were taken up together pursuant to the order passed by the Supreme Court of India. By the said order, the apex court transferred these matters pending before various High Courts to this court for considering whether the severable parts of the third and fourth provisos to section 80HHC(3) of the Income-tax Act, 1961 ("the Act", hereafter), are ultra vires articles 14 and 19(1)(g) of the Constitution of India. By way of consequential relief, the petitioners have prayed for direction upon the respondents not to give effect to those severable parts of the third and the fourth provisos to section 80HHC(3) of the Act and for prohibiting them from taking any action by taking aid of those provisos."
8.4 Pursuant to the order of the Hon'ble Supreme Court, the Hon'ble Gujarat High Court passed the order in case of Avani Exports vs. CIT, 348 ITR 391, quashing the retrospective amendment. The operative part of the order in the Para 25,26 & 27 of the judgment are as under :-
"25. In the case before us, it is not one where the executive has failed to carry out the object of Parliament necessitating exercise of control by retrospective amendment what the executive ought to have achieved. In the present case, according to the Finance Minister presenting the Bill, a valid piece of legislation has been wrongly interpreted by the Tribunal. We have already pointed out that, according to the existing law, if a valid piece of legislation is wrongly interpreted by the Tribunal, the aggrieved party should move higher judicial forum for correct interpretation. As pointed by the apex court in the case of Pritvi Cotton Mills Ltd (supra), the Legislature does not possess or exercise power to reverse the decision in exercise of judicial power. Thus, we are of the view that the principles laid down in the case of R. C.
Tobacco (P.) Ltd. (supra) has no application to the facts of the present case. The impugned amendment granting benefit restricting it to a class of assessees whose turnover is less than Rs. 10 crores is permissible prospectively but the way it has been enacted, it takes away an enjoyed right of a class of citizens who availed of the benefit by complying with the requirements of the then provisions of law.
26. On consideration of the entire materials on record, we, therefore, find substance in the contention of the learned counsel for the petitioners that the impugned amendment is violative for its retrospective operation in order to overcome the decision of the Tribunal, and at the same time, for depriving the benefit earlier granted to a class of the assessees whose assessments were still pending although such benefit will be available to the asses sees whose assessments have already been concluded.
In other words, in this type of substantive amendment, retrospective operation can be given only if it is for the benefit of the assessees but not in a case where it affects even a fewer section of the assessees.
27. We, accordingly, quash the impugned amendment only to this extent that the operation of the said section could be given effect from the date of amendment and not in respect of the earlier assessment years of the asses-sees whose export turnover is above Rs. 10 crores. In other words, the retrospective amendment should not be detrimental to any of the assessees."
8.5 It is seen that the Hon'ble Gujarat High Court has held that the impugned amendment granting benefit restricting it to a class of assessees whose turnover is less than Rs. 10 crores is permissible prospectively but the way it has been enacted, it takes away an enjoyed right of a class of citizens who availed of the benefit by complying with the requirements of the then provisions of law. The Hon'ble Court has further held that the impugned amendment is violative for its retrospective operation in order to overcome the decision of the Tribunal, and at the same time, for depriving the benefit earlier granted to a class of the assessees whose assessments were still pending although such benefit will 'be available to the assessees whose assessments have already been concluded. The Hon'ble High Court has quashed the impugned amendment only to the extent that the operation of the said section could be given effect from the date of amendment and not in respect of the earlier assessment years of the assessees whose export turnover is above Rs. 10 crores.
8.6 In view of the above decision by the Hon'ble Gujarat High Court, the disallowance u/s 8OHHC amounting to Rs.l,66,77,703/-, which was made merely on the basis of the amended provisions of Section SOHHC, cannot be sustained and is hereby deleted.”
8.1 On perusing the above finding of the ld. CIT(A), we find that the Hon'ble Gujarat High Court in the case of Avani Exports vs. CIT, 348 ITR 391 vide first Para of the Order has observed as under:-
"All these writ applications were taken up together pursuant to the order passed by the Supreme Court of India. By the said order, the apex court transferred these matters pending before various High Courts to this court for considering whether the severable parts of the third and fourth provisos to section 80HHC(3) of the Income-tax Act, 1961 ("the Act", hereafter), are ultra vires articles 14 and 19(1)(g) of the Constitution of India. By way of consequential relief, the petitioners have prayed for direction upon the respondents not to give effect to those severable parts of the third and the fourth provisos to section 80HHC(3) of the Act and for prohibiting them from taking any action by taking aid of those provisos."
8.2 We further find that pursuant to the order of the Hon'ble Supreme Court, the Hon'ble Gujarat High Court passed the order in case of Avani Exports vs. CIT, 348 ITR 391, quashing the retrospective amendment.
The operative part of the order in the Para 25,26 & 27 of the judgment are as under :-
"25. In the case before us, it is not one where the executive has failed to carry out the object of Parliament necessitating exercise of control by retrospective amendment what the executive ought to have achieved. In the present case, according to the Finance Minister presenting the Bill, a valid piece of legislation has been wrongly interpreted by the Tribunal. We have already pointed out that, according to the existing law, if a valid piece of legislation is wrongly interpreted by the Tribunal, the aggrieved party should move higher judicial forum for correct interpretation. As pointed by the apex court in the case of Pritvi Cotton Mills Ltd (supra), the Legislature does not possess or exercise power to reverse the decision in exercise of judicial power. Thus, we are of the view that the principles laid down in the case of R. C.
Tobacco (P.) Ltd. (supra) has no application to the facts of the present case. The impugned amendment granting benefit restricting it to a class of assessees whose turnover is less than Rs. 10 crores is permissible prospectively but the way it has been enacted, it takes away an enjoyed right of a class of citizens who availed of the benefit by complying with the requirements of the then provisions of law.
On consideration of the entire materials on record, we, therefore, find substance in the contention of the learned counsel for the petitioners that the impugned amendment is violative for its retrospective operation in order to overcome the decision of the Tribunal, and at the same time, for depriving the benefit earlier granted to a class of the assessees whose assessments were still pending although such benefit will be available to the asses sees whose assessments have already been concluded.
In other words, in this type of substantive amendment, retrospective operation can be given only if it is for the benefit of the assessees but not in a case where it affects even a fewer section of the assessees.
We, accordingly, quash the impugned amendment only to this extent that the operation of the said section could be given effect from the date of amendment and not in respect of the earlier assessment years of the asses-sees whose export turnover is above Rs. 10 crores. In other words, the retrospective amendment should not be detrimental to any of the assessees."
8.3 We further note that the Hon'ble Gujarat High Court has held that the impugned amendment granting benefit restricting it to a class of assessees whose turnover is less than Rs. 10 crores is permissible prospectively but the way it has been enacted, it takes away an enjoyed right of a class of citizens who availed of the benefit by complying with the requirements of the then provisions of law. The Hon'ble Court has further held that the impugned amendment is violative for its retrospective operation in order to overcome the decision of the Tribunal, and at the same time, for depriving the benefit earlier granted to a class of the assessees whose assessments were still pending although such benefit will 'be available to the assessees whose assessments have already been concluded. The Hon'ble High Court has quashed the impugned amendment only to the extent that the operation of the said section could be given effect from the date of amendment and not in respect of the earlier assessment years of the assessees whose export turnover is above Rs. 10 crores.
8.4 Therefore, in view of the above decision by the Hon'ble Gujarat High Court, the disallowance u/s 8OHHC amounting to Rs.1,66,77,703/-, which was made merely on the basis of the amended provisions of Section 8OHHC, was rightly deleted, which does not need any interference on our part, hence, we uphold the same and dismiss the ground raised by the Revenue.
Following the consistent view as taken in (AY 1999-2000) as aforesaid, the ground raised by the Revenue in ITA No. 3850/Del/2014 (AY 2004-05) is also dismissed.
In the result, both the Appeals filed by the Revenue stand dismissed.
Order pronounced on 05/05/2017.