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TMI Blog2015 (11) TMI 1788X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 01.03.2004, the total income of the assessee was determined by the Assessing Officer at Rs. 15,74,206/- after allowing the claim of the assessee for deduction under section 80HHC by taking into consideration receipts from DEPB sold amounting to Rs. 38,63,331/-. The said assessment was subsequently reopened by the Assessing Officer on 29.03.2006 in pursuance of the amendment made to section 80HHC read with section 28(iiid) of the Act by the Taxations Laws (Amendment) Act, 2005 with retrospective effect from 1st April, 1998. The said amendment, which was relevant in the case of the assessee, as contained in 3rd proviso was as under:- "Provided also that in the case of an assessee having export turnover exceeding rupees ten crores during the previous year, the profits computed under clause (a) or clause (b) or clause (c) of this sub-section or after giving effect to the first proviso, as the case may be, shall be further increased by the amount which bears to ninety per cent of any sum referred to in clause (iiid) of section 28, the same proportion as the export turnover bears to the total turnover of the business carried on by the assesese, if the assessee has necessary an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eking condonation of the said delay, which is duly supported by an affidavit filed by its Chartered Accountant. The reasons given by the assesese for the delay in filing this appeal are as under:- "3. The proceedings completed u/s 143(3) of the Act was reopened for reassessment u/s 147 of the Act and reassessment order u/s 147 of the Income Tax Act, 1961 was passed by the Assessing Officer on 19.12.2006. In the said reassessment order, the Assessing Officer has categorically noted that: It may be noted that the case was reopened in pursuance of the amendment brought into section 80HHC read with section 28(iiid) of the Act by the Taxation Laws Amendment Act 2005 with retrospective effect from 01/4/1998. 4. The Appellant, being an exporter with turnover during the relevant assessment year exceeding 10 crore, was not in a position to discharge the burden cast upon it under the Third Proviso retrospectively inserted w.e.f 1-4-1998 in section 80HHC of the Income-tax Act, 1961 by the Taxation Laws Amendment Act 2005 (hereinafter the Amendment Act) for availing the deduction under sub-section (1) to the extent of profit referred in sub-section (1B) of section 80HHC of the Income- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Amendment Act, through its association IEGF before approaching this Tribunal. The petitions challenging the constitutional validity of the Amendment Act was transferred by the apex court to the Gujarat High Court. 10. The Gujarat High Court heard the petitions transferred to it as per the apex court order. The division bench of Acting CJ Shri Bhaskar Bhattacharya and Justice Shri J.B. Patra passed an order and judgment dated 02-07-2012 in Avani Exports Vs. Commissioner of Income-tax [(2012) 23 taxmann.com 62 (Gujarat)] in which paragraph 25, 26 & 27 of the said judgment reads 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 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 point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Commissioner of Income- tax. The advocate Mr. Sharma by his opinion advised the Appellant that the Gujarat High Court while passing the judgment in the Avani Exports has acted as jurisdictional High Court for the entire country and therefore, the Appellant may now file appeal in the ITAT Kolkata relying upon the Gujarat High Court judgment. The Appellant thereafter, filed this appeal. 12. The Appellant humbly submits to this Hon'ble Tribunal that there was no wilful negligence or mala fide intention on the part of the Appellant. The Appellant has been prosecuting with due diligence with bonafide belief that issue being constitutional in nature has to be resolved by the constitutional court before the same can be relied upon by them in their appeal in the Tribunal. The delay is the result of the complex circumstances created after the Amendment Act, its challenge before various High Court, the action of the Union of India in filing the various Transfer Petition in the apex court, the order of the apex court transferring the petition to the Gujarat High Court, the failure on the part of the Union of India in not including the petition of IEGF in the list of cases pending b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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