9911796707
TMI Blog2014 (5) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 260A of the Income Tax Act (hereafter "the Act"), challenges the order of the Income Tax Appellate Tribunal (hereafter the "ITAT") on the ground that it erred in allowing the assessee to belatedly appeal against the orders of the Assessing Officer (hereafter "the AO"), on the basis of a judgment of the Gujarat High Court pronounced subsequent to the AO's orders, in which the provision underlying the assessment was held unconstitutional. 2. The assessee/respondent in this case filed returns claiming deduction under Section 80HHC of the Act. In view of the Taxation (Amendment) Act, 2005, Act No. 55 of 2005 dated 28.12.2005 (hereafter "the amendment"), a modification was introduced in the working of deductions under the third proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ground of delay of 5-6 years. On second appeal, the ITAT, after condoning the delay in filing the appeal on the ground that there was sufficient and reasonable cause, held in favour of the assessee by relying on the decision in Avani Exports (supra). The Revenue approached this Court challenging the order of the ITAT. 6. The appellant contends that the ITAT erred in holding that the amendment was only prospective in nature, since the legislature is empowered to impose tax through laws applicable retrospectively as well as prospectively, and in any case, a deduction cannot be available as a matter of right to assessees and thus, can be curtailed by fetters imposed by the legislature. It was more specifically urged that having accepted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omers. The condition for the refund was that the refunded amount ought to be passed on to the customers. Since the petitioners failed to comply with this condition, the sales tax authorities forfeited the amount under Section 21(4) of the Bombay Sales Tax Act, 1953. The petitioners moved a writ petition in the High Court challenging this provision on certain grounds; the writ petition was dismissed by the Single Judge and at all levels of appeal pursued. However, the Supreme Court in a subsequent decision struck down Section 12A(4) of the Bombay Sales Tax Act, 1946 (corresponding to Section 21(4) of the 1953 Act) on grounds different from those urged by the petitioner in its earlier writ proceedings. The petitioner then filed a writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase once adjudicated upon and acquiesced it may be questioned in a fresh litigation revived only with the argument, that the correct position was not known to the petitioner at the time when he abandoned his own litigation." [emphasis supplied] 9. This position was subsequently crystallised in Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536, in which the Court was faced with the same question i.e. whether it is open to the assessee to belatedly claim refund of tax paid by him under orders that have become final, on the basis of having discovered a mistake in the law, as found in the decision of a court in another assessee's litigation. The Court held at paragraph 70: "One of the important principles of law, based upon public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings against the retrospective amendment. Moreover, the assessee was also paying tax under the orders. The assessee only appealed against the AO's orders after a period of 5-6 years i.e. on 23.7.2012. It is clear that this appeal was moved on this date only in order to take advantage of the Gujarat High Court decision in Avani Exports (supra) pronounced on 2.7.2012. Thus, based on the law laid down in Tilokchand (supra) and Mafatlal (supra), this Court is of the opinion that the assessee cannot succeed in its appeal. 11. This Court is also of the opinion that this view does not put the assessee at an unequal position in comparison with the litigants in Avani Exports (supra). Materially, the point at which their positions must be comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice... It may be conceded in favour of Mr.Trivedi that the rule of constructive res judicata which is pleaded against him in the present appeal is in a sense a somewhat technical or artificial rule prescribed by the Code of Civil Procedure. This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically, even this view is founded on the same considerations of publi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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