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TMI Blog2014 (1) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appeal filed by assessee is delayed by 2078 days. The assessee alongwith condonation petition has filed an affidavit stating the following reasons: "1. That for the assessment year 2003-04, the appellant firm was assessed by the Asstt. Comm. Of Income Tax, Circle-35, Kolkata. 2. The assessment has resulted into a demand of Rs.4,12,221 due to the rejection of our claim for deduction u/s. 80HHC for Rs.10,55,000. 3. The appeal was filed before the Commissioner of Income Tax (A)-XXII, Kolkata. The aforesaid appeal was dismissed by an order dt. 16.11.2006 and the order of the aforesaid appeal served upon us on 17.11.2006. 4. In this appeal before CIT(A) we had challenged disallowance of deduction u/s. 80HHC as arbitrary, excessive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done the genuine delay as otherwise it would lead to great hardship to the appellant firm." 3. Ld. counsel for the assessee argued that the assessee being a member of Indian Exporters Grievances Forum (regd.), who filed Writ Petition before Hon'ble Bombay High Court and Hon'ble Gujarat High Court wherein the amendment was quashed by Hon'ble Gujarat High Court in Civil Application No. 7926 of 2006 and others (copy of the judgment of Hon'ble Gujarat High Court dated 07.02.2012 placed on record) wherein Hon'ble Gujarat High Court considered the issue in entirety and quashed the amendment in section 80HHC of the Act as under: '25. In the case before us, it is not one where the executive has failed to carry out the object of the Parliament nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessments were still pending although such benefit will be available to the assessees 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 assessee 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 earlier assessment years of the assessees whose export turnover is above Rs. 10 Crore. In other words, the retrospective amendment should not be detrimental to any of the assessees." 4. In view of this fact, Ld. counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the outset, the Hon'ble High Court has not granted any stay order either against operation of assessment order or against the hearing and disposal of this appeal. Hence, the appeal is being decided on its merit."
In such circumstances, we feel that the delay be condoned and appeal be admitted. Hence, we condone the delay and admit the appeal.
5. As regards to merits of the case, necessary details in respect to deduction u/s. 80HHC of the Act are not available on records and are also to be verified by the AO. Hence, this issue be remitted back to the file of AO, who will decide the claim of the assessee after verifying the details. We order accordingly.
6. In the result, appeal of assessee is partly allowed for statistical purposes. X X X X Extracts X X X X X X X X Extracts X X X X
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