TMI Blog2012 (9) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... oduce any evidence, the claim made by the assessee was disallowed - against assessee. - ITA.No. 34 of 2012 - - - Dated:- 3-8-2012 - Thottathil B Radhakrishnan And K Vinod Chandran, JJ. For Appellant : Sri Anil D Nair, Adv Sri J R Prem Navaz and Smt Nivedita A Kamath For Respondent : Sri P K R Menon, Sr Adv, Sri Jose Joseph, SC, Income-tax JUDGEMENT Per : Vinod Chandran, J. : The assessee is in appeal before us against the orders of the Tribunal for the assessment years 2002-'03 and 2003-'04. The appellant/assessee is an exporter of cashew kernels and the assessments for the respective years were completed by accepting the returns under Section 143(1) of the Income Tax Act, 1961 (hereinafter called the Act). Subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted. The last ground was that the assessing officer was wrong in excluding the entire sale value of the DEPB licence for computing the deduction under Section 80 HHC. The assessee relied on a decision of the Special Bench of the ITA Tribunal, Mumbai in Topman Exports Vs. The Income Tax Officer (OSD) 14(2) Mumbai, ITA No.5769/MUM/2006 dt. 11.8.2009 to advance his contentions. The first ground was rejected by the first appellate authority holding that the reopening under Section 147 was done based on the retrospective amendment and was within the prescribed time limit and hence is valid. The 1st appellate authority, in any event could not have considered the validity of the retrospective amendment. The ground regarding the inclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (342 ITR 49 (SC)]; and affirms the Special Bench decision cited supra. The issue that arose in the said case was whether on sale of DEPB the entire sale value could be treated as profit arising on transfer of DEPB for the purpose of clause (iiid) of Section 28. The argument before the Supreme Court was that in such circumstance there will be double taxation on the assessee since under clause (iiib) of Section 28 the cash assistance, equivalent to the face value of the DEPB would be taxed and the same again subjected to tax for a second time as profit on transfer of DEPB under clause (iiid) of Section 28. What is to be taken for the purpose of clause (iiid) of Section 28, according to the assessees before the Supreme Court, was the differenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it derived by sale of DEPB; has been struck down by the High Court of Gujarat at Ahmedabad. 7. The validity of a provision cannot be considered or adjudicated upon by the Tribunal constituted under the Act. Section 260A provides for an appeal from every order passed by the Appellate Tribunal; if it involves a substantial question of law. Such question of law should arise from the order of the Tribunal. If the Tribunal cannot consider the validity of a retrospective amendment, no doubt such question does not arise from its order and the jurisdiction conferred on the High Court under Section 260A cannot also enable the High Court to consider such validity or otherwise. 8. The issue of the scope of Section 67 in the Income Tax Act, 1922 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the Appellate Tribunal to the High Court, the High Court shall decide the questions of law raised thereby and pass its judgment thereon and thereafter the Appellate Tribunal may pass such orders as are necessary to dispose of the case conformably to such judgment. It has been held by this Court that the jurisdiction conferred upon the High Court by s.66 of the Income-tax Act is a special advisory jurisdiction and its scope is strictly limited by the section conferring the jurisdiction. It can only decide questions of law that arise out of the order of the Tribunal and that are referred to it. Can it be said that a question whether a provision of the Act is ultra vires of the Legislature arises out of the Tribunal's order? As the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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