TMI Blog2012 (9) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... new material, and was within the prescribed time limit and hence is valid. 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 - against assessee - ITA.No. 50 of 2012 - - - Dated:- 3-8-2012 - MR.JUSTICE THOTTATHIL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving failed to produce any evidence, the claim made by the assessee was disallowed. 2. Before the first appellate authority the assessee raised three specific grounds with respect to the disallowance of the claim under Section 80HHC. The first two grounds were on the reopening of the assessment under Section 147 alleging there was no material to invoke the provision and whether an amendment tantamounts to new material. The next ground was regarding the reopening of the assessment on the ground of retrospective amendment of Section 80 HHC, since according to the assessee no retrospective amendment could have been made to withdraw the exemption or concessions already granted. The first two grounds were rejected by the first appellate auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court decision referred to by the assessee is reported in M/s. Topman Exports Vs. Commissioner of Income Tax, Mumbai [(342 ITR 49 (SC)]. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 arose in K.S.Venkataraman Co. Vs. State of Madras (1966) 2 SCR 229. Section 67 was a bar to the maintainability of a suit against assessments made under the Act. Whether the restriction applied in the event of the assessing officer giving effect to an ultra vires provision; was the question dealt with. After noticing the provisions empo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Tribunal is a creature of the statute, it can only decide the dispute between the assessee and the Commissioner in terms of the provisions of the Act. The question of ultra vires is foreign to the scope of its jurisdiction. If an assessee raises such a question, the Tribunal can only reject it on the ground that it has no jurisdiction to enter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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