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TMI Blog2017 (5) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... ner 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. ITA No. 3850/Del/2014 (AY 2004-05), identical issue is involved and similar grounds have been raised, the only difference is in the figures involved. 3. 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. 4. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded 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 pendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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